....AS AN APPENDIX TO MY INFORMATIONAL SUPPLEMENT IN ANSWER TO THE ABOVE CAPTIONED MATTERS, SUBMITTED BY DEFENDANT DANIEL M ROSENBLUM ("I", "ROSENBLUM" and "DMR" below.)
___________________________________
30.
§§¶¶ 30
Stephen Bann of Zwicker is not entitled to the discontinuance mechanism given the nature of the action. Perhaps he was instructed by his client to terminate the action and instead of explaining to his client the accurate status of the case Steven Bann told his client that he would end the action and similarly informed his client, the bank, that the action had ceased in New York State Court. Perhaps Steven Bann has assuredly conveyed to his client the same on 1000, 5000, or 10,000 cases. If so, that is misinformation to the client. Or, perhaps the client understands that all the cases marked "disposed" are open actions- perhaps subject to statutes of limitations but the cases are unresolved resultant a Zwicker Notice of Discontinuance, even if the account holder has paid a sum of money back to American Express. Perhaps all such cases must be re-tried if Discontinuances were filed by Zwicker in New York State given that the negotiations with the Defendant by Zwicker misrepresented the significance of the Discontinuance Notice to the Defendant in proximity to the settlement payment. To file an instrument in a New York State Court action is to have an intent associated with utilizing such instrument by an attorney admitted to the bar. Is the intent of filing the instrument an intent to mislead , or, is it an intent to discontinue? if the intent is to actually discontinue, an attorney firm hired by American Express such have the knowledge and resources to understand the available manners to terminate an action, and should use an available, legitimate manner to terminate a case, not an instrument the firm should in all earnest understand to be a nullity.
§§¶¶ 31
note: insofar as e.g. the Eric Calantone of Jaffe & Asher Notice of Discontinuance, {image of the Affidavit of Service of the Jaffe Discontinuance can be viewed in Paragraph 17 of DMRAMEX091513 online or Efile Document # 8 Answer2} where he notarized but the affiant did not indicate the date- Presumably in the Jaffe and Zwicker instrument of discontinuance is as the result of an intent to discontinue; several questions arise- was there an intent to discontinue, or, an intent to mislead? In either scenario is there a proper understanding of the cplr by the firm? if intent to mislead, that is deceptive. If there was intent to discontinue, then it is a misunderstanding of the law/CPLR, and in either instance as well, the processing of the instrument is one which should be handled in accordance of the law insofar of the date of the instrument and affiant and notarization of the affiant. Calantone should not be notarizing the affiant, with a date, the affiant of service which carries no date. And, there are questions surrounding when the intent to discontinue, and why the intent to discontinue or why the intent to discontinue arose; including the notion that both firms received instructions from the client to properly end the action. Perhaps they were given instructions to properly end the action; if they were given such instructions, then , are they qualified to represent the client or any client when given the instructions they misread the cplr and misled the defendant . Integrate this into questions presented and other areas- at least one area is questions presented.
§§¶¶ 32
one error by a firm is just that- an error. But when such errors become integral to a firms' practice in a majority of cases, those errors are not acceptable ad tend to work towards injustice and tend to demonstrate, without further review, tend to demonstrate (16/23 4:27) not only inadequacy but inappropriate tactics which lead to injustice and merit sanctions.
§§¶¶ 33
Emphasize the nexus between "that litigants should be prepared in an action " nexus to "entitled to a just result in the same index number" that the litigant should be prepared to litigate 'compulsory actions' in the same case and in fact should be looking to minimize compulsory actions by not giving rise by practice to potential compulsory actions on the front end of their business model as compared to minimizing the potential of litigation of compulsory counterclaims by defendant litigants through procedural tactics which in fact are misleading and abuse of the CPLR and Model rules. It is unfair that I should have to rely on a second action purchasing a new index number to resolve matters which are borne of the same subject matter as the case at bar.
§§¶¶ 34
in the instances where the discontinuances have been filed, it is not unreasonable to assume that the plaintiff attorney has mislead the defendant with regards to the significance of the instrument. And, the simple fact is that where generally speaking yes, the burden is on the defendant to understand the law and to put forth one's rights in court; but, the affirmative action of the plaintiff attorney in filing the nullity instrument repeatedly in case after case is one where/that shifts that burden. And where the court has moved cases' status to 'disposed'- even though that is perhaps an internal record-keeping status internal to the court with regards to indices assigned to a judge perhaps, but, the status shift should probably only occur following judicial review or some mechanism which comports with the CPLR, not a nullity. If the legislature wants to change the CPLR and allow Notice of Discontinuance at any stage in litigation, the legislature can deem Notice of Discontinuances to be effective when filed by Plaintiffs at any stage of litigation. Thus far, the legislature has not passed such law. Rather, the legislature passed CPLR as writ. At common law in the 18th Century, a Plaintiff was permitted to dismiss a case voluntarily without prejudice anytime prior to judgment. Today such right to dismissal is governed by rule or statute. Most jurisdictions reject the common law approach recognizing the burden on a defendant of a civil suit. An appearance alone does not constitute a burden on a defendant, but, an answer does. "defendant" and "answer" in this regard, is a sort of universal concept in the debt collection practice. These firms function as machines, and, where there are answers are removing the "burden" associated with litigation universally by filing the instrument they are not entitled to file, claiming that there's no issue remaining in the litigation and that the status should shift to 'disposed' because the plaintiff so desires, and indicates to the defendant in negotiation that legitimately the legislature has recognized that common law approach when the legislature has not done so. There is expense to the court system when litigants repeatedly file cases with the knowledge that they can at will dismiss cases without the cost to the plaintiff of appropriate adjudication of ALL cases files even if not in the interest of the plaintiff.
§§¶¶ 35
While there is privity in an action, all compulsory claims must be asserted by defendants; plaintiffs action in filing the discontinuance notices and belie-ing the significance of the instrument in negotiations works to minimize compulsory counterclaim suits in a percentage of actions where compulsory counterclaims would tend to arise or be recognized during t he course of actual litigation and adjudication and is therefore unjust. The cases should remain active, and, it would become apparent that these plaintiffs are over-utilizing the court's resources in an unjust frivolous manner. The burden of such cost should be resolved at the front end of making loans, not absorbed by the courts resources piling as a burden of active unresolved cases. Plaintiffs can secure Stipulations as part of their business model, but, such Stipulations in instances of settlements for money to a lender should not carry the additional "waiver and release" regarding the lender and lender's attorneys, absolving the attorneys and lender of any wrongdoing related to the litigation for perpetuity circumventing proper adjudication costs and the law in general but commencing the action using the authority of the state court system. That is a calculate way to circumvent the law and minimize liabilities associated with such litigation and can be construed as intended harassment by such plaintiff firms.
especially where plaintiff's attorneys do that in proximately to a settlement and misrepresent the significance of the instrument. To be certain it is important for the judges' chambers not to have a pile of unresolved actions. but, in the consumer credit civil claims, defendants do not have a right to an attorney, and defendants oftentimes find themselves in court on the one instance in their lives. There is a problematic repetition of the same maneuver and tactic and strategies, there are few ways to reconcile it, this is one suggested manner to reconcile. another might be to have CFPB act as attorney in these cases. But bear in mind that here, presently, litigant Rosenblum is not litigating to be a protector of debtor's rights or to seek a maneuver for debtors to circumvent obligation; rather, insofar as the data processing industry is concerned and DMR's rights as sole proprietor of the business entities 21, TTS, and TMTP
for an accurate record in such actions as these summons and complaints in consumer credit actions, defendants would have to file as I do and did in every instance- while the case was in "disposed" status and with a similar impression and understanding
regarding the fact that a case file has already been created and issues presented given all aspects of the case , rather than file a new case against the plaintiff when the plaintiff can make up any story about why the discontinuance was filed "without prejudice" etc.
§§¶¶ 35.5
and, insofar as proper adjudication has not been had nor just result arrived at yet, Rosenblum is of the impression he is entitled to such result given commencement of action . DMR of the opinion that eventually this or any case should properly be subject to appeal and properly adjudicated. Here, presently , the status is one which changed to disposed without traditional review so the status of the case is one in which its in a no mans land- moved to disposed without judicial review or stipulation bypassing the rights of the defendant in all ways. Note in .there's nothing to appeal yet and there should be if a party is dissatisfied with a facet of the litigation; nor has their been any legally sanctioned mechanism or valid legal intrument initiated by the parties to the action which instrument could cause the case status to move from "active" to disposed". The CPLR specifically states that a filing fee for a stipulation of discontinuance MUST be paid by the defendant- ensuring that defendants in actions as a whole sum in the Court system are brought before the court 's authority by civil Plaintiff firms either are party to cases properly resolved by the State before a judge OR the parties have reached an agreement that the defendant is willing to pay a filing fee for. Otherwise Plaintiff firms become quasi-governmental agencies, similar to a district attorney filing a complaint. But the DA is subject to and follows the law as a quasi-judicial officer in the prosecutions of matters before the authority of the State court system. Here, the firms are Zwicker Associates or Jaffe and Asher filing Summons and Complaints and using the authority of the State to profit from default judgments but the same genre of legal actions are in sum not being reviewed by the Authoirty of the State, which purpose of review by the state in the judicial sytstem is to have an end sum "just result" politically and economically in the market where such actions are being brought before the court. In this type of action, Consumer Credit, these firms are not litigating to the benefit of the US economy but to the detriment of progress in the data processing market. That is to say, Rosenblum is of the understanding that proper legal adjudication of the sum of cases in which Zwicker, for example, used a 'null instrument CPLR §§ 3217' and paid a fee in contravention to the intents and purposes of the CPLR including CPLR §§ 3217 (d) {"All notices, stipulations, or certificates pursuant to this rule shall be filed with the county clerk by the defendant."} CPLR §§ 8008 CPLR §§ 8020(d) {"Filing a stipulation of settlement or a voluntary discontinuance……..pursuant to §§3217 (d), defendant shall file and pay $35 in supreme court and county court."} CPLR §§ 2104 Stipulations {"terms of stipulation shall be filed by the defendant with the county clerk."}. Justice is not served when such cases sit in a pile 'Disposed' but never having the subject matter of the cases in sum with proper legal advocacy immersed in the adversarial judicial process which has the cumulative efffect of justice in the arena or marketplace from whence the types of actions were borne. Here, Rosenblum, as per the 21st Century Digital Analysis/Critique, the action is borne in the arena of data processing by financial services companies- companies presumably, as 'banking entities' presumably engaged in the commerical services of loans, discounts, deposits, and trusts. Here, Rosenblum is stating as well that the Zwicker firm may be misleading its client by claiming to have 'resolved in the eyes of the State' the countless cases which are marked as disposed but are active under the Rosenblum analysis above. Or, perhaps Amex is aware of the Zwicker practice described (and other such firms similar to Zwicker doing the same thing), and in such scenario Amex is aware and believes the Zwicker practice pertaining to 'disposed' cases and CPLR §§ 8008 CPLR §§ 8020(d) §§3217 (d), and CPLR §§ 2104. Perhaps Amex General Counsel would argue that the contracted firms' interpretation and use of CPLR §§ 8008 CPLR §§ 8020(d) §§3217 (d), and CPLR §§ 2104 is legitimate and should cause the status of the case to move to disposed from active- and that all Zwicker's settlement negotiated and related release and waivers are valid.
§§¶¶ 36.1
§§¶¶ 36.2
§§¶¶ 36.3
§§¶¶ 36.5
For the reasons stated above, and variously throughout this filing, the cases 061458/2013 and 100156/2011 are not disposed. And, if the Zwicker firm had led one or three or even 10 litigants over the course of a significant time period to believe that the 3317 Notice filed by Zwicker following 20 days or after any responsive pleading terminated the case, perhaps such error might be excusable as a law firm error. However, the bottom line is that Zwicker has made an operational decision to misrepresent the CPLR and the weight of their repeated filing to litigant after litigant; the practice is a tactical strategy, and is reprehensible in the industry under analysis in particular given the Rosenblum analysis including 21st Century Digital criticism taking into consideration Permissible Activities and Tying Law for commercial entities, namely banks, engaged presumably primarily in the commercial, regulated, banking activity of loans, discounts, deposits, and trusts- and utilizing the canon of law associated with such status to utmost advantage in the marketplace.
§§¶¶ 36.6
§§¶¶ 36.7
Prior to Rosenblum's 9/15/2013 filing in this case, the document list on NYSCEF shows one document on September 1, as if its a valid discontinuance of the action and as if the Plaintiff and Plaintiffs attorney is not subject to the courts purview in the action; yet Rosenblum has attended to the subject matter over the course of 8 months to date and at the inception of that8 months on several occasions Rosenblum notifed Zwicker of the NY index and disbelieved that the firm was operating at the request of American Express. Zwicker's operations are calculated such the the call center operation investment is covered by the profits resultant the likelihood of default judgment s resultant the calculated misuse of the CPLR at commencement and discontinuance of related actions as described by Rosenblum. It’s a simple equation- there's likelihood of default judgment by debtors given the manner in which Zwicker practices law, not in conformance with CPLR nor NY Model Rules but rather the operational decision has been made by Zwicker corporate officers to function as such, allocating resources as such, and supervising in such manner minimizing resources allocated to diligent practice of law in manners not compatible with the profession, using those same resources for call centers and call center technologies rather than policies which would tend to effectuate diligent practice of law, which policies and technologies are absent insofar as diligent practice of law but instead are devoted to salaries for callers at call centers and dial machines and phone tree systems recording calls and verbal disclaimers and supervisors in such centers when instead Zwicker could have a functioning program to comply with the law, such as a system which records whether lower level attorneys may or may not file a 3317 Discontinuance, and whether such instruments were filed following the time period such attorneys were eligible to do so. Such a system should have operationally taken precedence over call centers for a law firm where there is such blatant abuse of the CPLR. If attorney Supervisors are unaware of the abuse, they themselves are failing at their primary chore of supervision in a law firm. Again, given a calculation on the likelihood of default judgment and the profits associated therewith. The current case, and similar cases, are symptomatic of the current commercial data processing services offered by Financial Services Companies whose primary commercial service offering s are presumably loans, discounts, deposits, and trusts. Please see DMRs excerpt from the DMR BHC 4(c)(8) 'Mock-up' appendix 9/15/13 as to the productive, efficient, effective service which Financial Services Companies could engage in as a solution to the dilemma which dilemma is basically that Financial Services Companies are certainly understandably reluctant to give up the 68 billion dollar annual revenue stream from processing transactions which transactions should theoretically occur AFTER withdrawal of monies from the bank with no financial benefit to the Bank Holding Company for services which services should be performed for profit OUTSIDE the BHC's purview and benefit in traditional banking theory. The fact t hat it is digital commerce- not physical- plays a unique role in the conundrum which is economic, commercial , and legal in nature. The productive, efficient role for the BHC affiliate in commercial data processing , DMR suggests in his BHC 4(c)(8) application to the Federal Reserve Board (which oversees such applications) is a role as a Network Administrator on a Network structured for purposes of processing secure data (no matter whether the data is financial or not). The DMR application to the Federal Reserve Board goes into greater detail insofar as how the role for the BHC resolves the issues problematic in the current environment as it relates to Permissible Activities and Tying described variously by DMR in today's filing. Presently,
§§¶¶ 37.5. Zwicker may be of mind that the Stephen Bann Notice of Discontinuance is valid. Rosenblum states that he relies on the CPLR for multiple reasons that the matter in Suffolk County is not properly resolved. Amongst other reasons, the Bann Discontinuance comes more than 20 days after the filing (electronically) of the Summons and Complaint. Note that Zwicker has reportedly collected an exceedingly large percentage of its +/- $68,000,000 in revenues by relying on the 30 day time limit to achieve default judgments given the CPLR. It would be unfair to give Zwicker and Jaffe the benefit of the CPLR in those revenues but ignore the letter of the CPLR insofar as the discontinuance CPLR. In addition, there are several reasons that the "Bann Discontinuance" is flawed as articulated in Rosenblum's Labor Day 2013 filing. Further, apparently there was instantaneous communications between American Express, Zwicker PC, and Jaffe once Rosenblum contacted the American Express General Counsel's Office and Zwicker PC following receipt of the Zwicker Summons and Complaint. Note that the Zwicker Summons and Complaint does not indicate the Index Number of the Case, nor is there an attachment explaining that the filing was an e-filing, nor any instructions to the defendant Rosenblum insofar as how to answer given efiling. Even if Rosenblum had answered via paper, the answer would have been rejected and Rosenblum may have therefore been subject to a default judgement. In fact, it is unclear whether Zwicker and Jaffe colluded to the extent that Jaffe would have or should have discontinued in Manhattan while Zwicker commenced in Suffolk in an effort to increase the odds that Zwicker would get a default judgment in Suffolk. Similarly, it is unclear if Zwicker has achieved default judgments in efile jurisdictions simply by not attaching the mandatory efile instructions in such jurisdictions. A major problem includes the fact that these profit motivated debt collection firms allocate resources not to diligence, but to gaining default judgments. It is relatively inconceivable that Zwicker would not be in contact with Amex prior to bringing an action, and that Amex would not know that Jaffe was prosecuting the matter in NY. There are myriad aspects inconceivable. The mere fact that Zwicker relies on phone recordings in a court of law when there is no option for consumers to record calls or preserve calls recorded by Zwicker is somewhat inconceivable. Further, it is inconceivable that Zwicker and Jaffe do not have in place demonstrable systems of diligence to avoid dual jurisdiction filings yet they have purchased systems of technology to dial out from call centers and record the calls and rely that such calls are admissible yet presumably there is no software in place with a mandatory checklist for their attorneys prior to filing an RJI or Discontinuance with questions like "has an RJI previously been filed" (if so, a pop-up stating "do not file another RJI" or "has 20 days passed since the filing of the Summons and Complaint" (a pop up stating 'if yes, do not file a Discontinuance'") or "has a responsive pleading been filed?" Or "has there been a change in address of Defendant". This, to the attorneys who went to law school, passed the bar, and are earning six figures. To be certain, the Zwicker call center operators are also being paid handsome salaries, and, are trained extensively to solicit certain information from purported debtors, but, all the information garnered has little to do with diligence in the legal field for future cases. Rosenblum requested on multiple occasions that Zwicker cease and desist from calling given the Jaffe Manhattan Index number. There are many such problems, including but not limited to the notion that, to be certain, Rosenblum was able to act relatively quickly given available technologies to convince Zwicker and Amex that it was in their interest to act in some way to avoid a flawed default judgment in Suffolk albeit it would have been impossible for Rosenblum to actually appropriately answer the Suffolk complaint given reasonable efforts.
40. Refer subject matter to :Office of court administration, Departmental Disciplinary Committee
Including reference to all above matter;
Variously throughout today's filing I have indicated that it is my impression that the Zwicker and the Jaffe firms Professional Conduct is lacking. Here is a preliminary reference to the Rules which I observe the firms may be violating, additional work shall be done to follow up by DMR:
RULE 3.1:
NON-MERITORIOUS CLAIMS AND CONTENTIONS
(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so that is not frivolous. A
lawyer for the defendant in a criminal proceeding or for the respondent in a proceeding
that could result in incarceration may nevertheless so defend the proceeding as to require
that every element of the case be established.
(b) A lawyer’s conduct is “frivolous” for purposes of this Rule if:
(1) the lawyer knowingly advances a claim or defense that is unwarranted
under existing law, except that the lawyer may advance such claim or defense if it
can be supported by good faith argument for an extension, modification, or reversal
of existing law;
(2) the conduct has no reasonable purpose other than to delay or prolong
the resolution of litigation, in violation of Rule 3.2, or serves merely to harass or
maliciously injure another; or
(3) the lawyer knowingly asserts material factual statements that are
false.
Comment
[1] The advocate has a duty to use legal procedure for the fullest benefit of the
client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and
substantive, establishes the limits within which an advocate may proceed. However, the law is
not always clear and is never static. Accordingly, in determining the proper scope of advocacy,
account must be taken of the law’s ambiguities and potential for change.
[2] The filing of a claim or defense or similar action taken for a client is not frivolous
merely because the facts have not first been fully substantiated or because the lawyer expects to
develop vital evidence only by discovery. Lawyers are required, however, to inform themselves
about the facts of their clients’ cases and the applicable law, and determine that they can make
good-faith arguments in support of their clients’ positions. Such action is not frivolous even
though the lawyer believes that the client’s position ultimately will not prevail. The action is
frivolous, however, if the action has no substantial purpose other than to harass or maliciously
injure a person, or if the lawyer is unable either to make a good-faith argument on the merits of
the action taken or to support the action taken by a good-faith argument for an extension,
modification or reversal of existing law (which includes the establishment of new judge-made
law).
[3] The lawyer’s obligations under this Rule are subordinate to federal or state
constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in
presenting a claim or contention that otherwise would be prohibited by this Rule.
RULE 1.1:
COMPETENCE
(a) A lawyer should provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
(b) A lawyer shall not handle a legal matter that the lawyer knows or should
know that the lawyer is not competent to handle, without associating with a lawyer who is
competent to handle it.
(c) A lawyer shall not intentionally:
(1) fail to seek the objectives of the client through reasonably available
means permitted by law and these Rules; or
(2) prejudice or damage the client during the course of the representation
except as permitted or required by these Rules.
RULE 1.3:
DILIGENCE
(a) A lawyer shall act with reasonable diligence and promptness in representing
a client.
(b) A lawyer shall not neglect a legal matter entrusted to the lawyer.
(c) A lawyer shall not intentionally fail to carry out a contract of employment
entered into with a client for professional services, but the lawyer may withdraw as
permitted under these Rules.
Comment:
[2] A lawyer’s work load must be controlled so that each matter can be handled
diligently and promptly. Lawyers are encouraged to adopt and follow effective office procedures
and systems; neglect may occur when such arrangements are not in place or are ineffective.
RULE 1.16:
DECLINING OR TERMINATING REPRESENTATION
(a) A lawyer shall not accept employment on behalf of a person if the lawyer
knows or reasonably should know that such person wishes to:
(1) bring a legal action, conduct a defense, or assert a position in a
matter, or otherwise have steps taken for such person, merely for the purpose of
harassing or maliciously injuring any person; or
(2) present a claim or defense in a matter that is not warranted under
existing law, unless it can be supported by a good faith argument for an extension,
modification, or reversal of existing law.
(b) Except as stated in paragraph (d), a lawyer shall withdraw from the
representation of a client when:
(1) the lawyer knows or reasonably should know that the representation
will result in a violation of these Rules or of law;
(2) the lawyer’s physical or mental condition materially impairs the
lawyer’s ability to represent the client;
(3) the lawyer is discharged; or
(4) the lawyer knows or reasonably should know that the client is
bringing the legal action, conducting the defense, or asserting a position in the
matter, or is otherwise having steps taken, merely for the purpose of harassing or
maliciously injuring any person.
(c) Except as stated in paragraph (d), a lawyer may withdraw from representing
a client when:
(1) withdrawal can be accomplished without material adverse effect on
the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services
that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or
fraud;
(4) the client insists upon taking action with which the lawyer has a
fundamental disagreement;
(5) the client deliberately disregards an agreement or obligation to the
lawyer as to expenses or fees;
87
(6) the client insists upon presenting a claim or defense that is not
warranted under existing law and cannot be supported by good faith argument for
an extension, modification, or reversal of existing law;
(7) the client fails to cooperate in the representation or otherwise renders
the representation unreasonably difficult for the lawyer to carry out employment
effectively;
(8) the lawyer’s inability to work with co-counsel indicates that the best
interest of the client likely will be served by withdrawal;
(9) the lawyer’s mental or physical condition renders it difficult for the
lawyer to carry out the representation effectively;
(10) the client knowingly and freely assents to termination of the
employment;
(11) withdrawal is permitted under Rule 1.13(c) or other law;
(12) the lawyer believes in good faith, in a matter pending before a
tribunal, that the tribunal will find the existence of other good cause for withdrawal;
or
(13) the client insists that the lawyer pursue a course of conduct which is
illegal or prohibited under these Rules.
(d) If permission for withdrawal from employment is required by the rules of a
tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal
without its permission. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(e) Even when withdrawal is otherwise permitted or required, upon termination
of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid
foreseeable prejudice to the rights of the client, including giving reasonable notice to the
client, allowing time for employment of other counsel, delivering to the client all papers and
property to which the client is entitled, promptly refunding any part of a fee paid in
advance that has not been earned and complying with applicable laws and rules.
RULE 3.3:
CONDUCT BEFORE A TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by the
lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the
lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer,
the lawyer’s client, or a witness called by the lawyer has offered material evidence
and the lawyer comes to know of its falsity, the lawyer shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may
refuse to offer evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires
disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material
facts known to the lawyer that will enable the tribunal to make an informed decision,
whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged
or irrelevant, the identities of the clients the lawyer represents and of the persons who
employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the
bar or a particular tribunal without giving to opposing counsel timely notice of the
intent not to comply;
(2) engage in undignified or discourteous conduct;
109
(3) intentionally or habitually violate any established rule of procedure or
of evidence; or
(4) engage in conduct intended to disrupt the tribunal.
RULE 3.2:
DELAY OF LITIGATION
In representing a client, a lawyer shall not use means that have no substantial
purpose other than to delay or prolong the proceeding or to cause needless expense.
Comment
[1] Dilatory practices bring the administration of justice into disrepute. Such tactics
are prohibited if their only substantial purpose is to frustrate an opposing party’s attempt to
obtain rightful redress or repose. It is not a justification that such tactics are often tolerated by
the bench and bar. The question is whether a competent lawyer acting in good faith would
regard the course of action as having some substantial purpose other than delay or needless
expense. Seeking or realizing financial or other benefit from otherwise improper delay in
litigation is not a legitimate interest of the client.
RULE 3.4:
FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) (1) suppress any evidence that the lawyer or the client has a legal
obligation to reveal or produce;
(2) advise or cause a person to hide or leave the jurisdiction of a tribunal
for the purpose of making the person unavailable as a witness therein;
(3) conceal or knowingly fail to disclose that which the lawyer is required
by law to reveal;
(4) knowingly use perjured testimony or false evidence;
(5) participate in the creation or preservation of evidence when the
lawyer knows or it is obvious that the evidence is false; or
(6) knowingly engage in other illegal conduct or conduct contrary to these
Rules;
(b) offer an inducement to a witness that is prohibited by law or pay, offer to pay
or acquiesce in the payment of compensation to a witness contingent upon the content of
the witness’s testimony or the outcome of the matter. A lawyer may advance, guarantee or
acquiesce in the payment of:
(1) reasonable compensation to a witness for the loss of time in attending,
testifying, preparing to testify or otherwise assisting counsel, and reasonable related
expenses; or
(2) a reasonable fee for the professional services of an expert witness and
reasonable related expenses;
(c) disregard or advise the client to disregard a standing rule of a tribunal or a
ruling of a tribunal made in the course of a proceeding, but the lawyer may take
appropriate steps in good faith to test the validity of such rule or ruling;
(d) in appearing before a tribunal on behalf of a client:
(1) state or allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence;
(2) assert personal knowledge of facts in issue except when testifying as a
witness;
(3) assert a personal opinion as to the justness of a cause, the credibility
114
of a witness, the culpability of a civil litigant or the guilt or innocence of an accused
but the lawyer may argue, upon analysis of the evidence, for any position or
conclusion with respect to the matters stated herein; or
(4) ask any question that the lawyer has no reasonable basis to believe is
relevant to the case and that is intended to degrade a witness or other person; or
(e) present, participate in presenting, or threaten to present criminal charges
solely to obtain an advantage in a civil matter.
RULE 5.1:
RESPONSIBILITIES OF LAW FIRMS, PARTNERS, MANAGERS AND SUPERVISORY
LAWYERS
(a) A law firm shall make reasonable efforts to ensure that all lawyers in the
firm conform to these Rules.
(b) (1) A lawyer with management responsibility in a law firm shall make
reasonable efforts to ensure that other lawyers in the law firm conform to these
Rules.
(2) A lawyer with direct supervisory authority over another lawyer shall
make reasonable efforts to ensure that the supervised lawyer conforms to these
Rules.
(c) A law firm shall ensure that the work of partners and associates is
adequately supervised, as appropriate. A lawyer with direct supervisory authority over
another lawyer shall adequately supervise the work of the other lawyer, as appropriate. In
either case, the degree of supervision required is that which is reasonable under the
circumstances, taking into account factors such as the experience of the person whose work
is being supervised, the amount of work involved in a particular matter, and the likelihood
that ethical problems might arise in the course of working on the matter.
(d) A lawyer shall be responsible for a violation of these Rules by another lawyer
if:
(1) the lawyer orders or directs the specific conduct or, with knowledge of
the specific conduct, ratifies it; or
(2) the lawyer is a partner in a law firm or is a lawyer who individually or
together with other lawyers possesses comparable managerial responsibility in a law
firm in which the other lawyer practices or is a lawyer who has supervisory
authority over the other lawyer; and
(i) knows of such conduct at a time when it could be prevented or
its consequences avoided or mitigated but fails to take reasonable remedial
action; or
(ii) in the exercise of reasonable management or supervisory
authority should have known of the conduct so that reasonable remedial
action could have been taken at a time when the consequences of the conduct
could have been avoided or mitigated.
RULE 5.3:
LAWYER’S RESPONSIBILITY FOR CONDUCT OF NONLAWYERS
(a) A law firm shall ensure that the work of nonlawyers who work for the firm is
adequately supervised, as appropriate. A lawyer with direct supervisory authority over a
nonlawyer shall adequately supervise the work of the nonlawyer, as appropriate. In either
case, the degree of supervision required is that which is reasonable under the
circumstances, taking into account factors such as the experience of the person whose work
is being supervised, the amount of work involved in a particular matter and the likelihood
that ethical problems might arise in the course of working on the matter.
(b) A lawyer shall be responsible for conduct of a nonlawyer employed or
retained by or associated with the lawyer that would be a violation of these Rules if
engaged in by a lawyer, if:
(1) the lawyer orders or directs the specific conduct or, with knowledge of
the specific conduct, ratifies it; or
(2) the lawyer is a partner in a law firm or is a lawyer who individually or
together with other lawyers possesses comparable managerial responsibility in a law
firm in which the nonlawyer is employed or is a lawyer who has supervisory
authority over the nonlawyer; and
(i) knows of such conduct at a time when it could be prevented or
its consequences avoided or mitigated but fails to take reasonable remedial
action; or
(ii) in the exercise of reasonable management or supervisory
authority should have known of the conduct so that reasonable remedial
action could have been taken at a time when the consequences of the conduct
could have been avoided or mitigated.
Note that it is my impression that Zwicker PC is putting profit above diligence. Here I have begun my research on the Zwicker operations in States other than New York, for who knows what but it seems likely for call centers and and related non legal work. Even as such operations exist, it is exceedingly difficult to correspond with Zwicker and increasingly evident that the Zwicker machine does not add to the justice system but rather detracts from it, and does not add to the economic well being of the US but detracts from it:
I have begun the process to Efile in Suffolk in the matter filed by Zwicker, as per information by me, Rosenblum regarding the matter it is my impression that the Notice of Discontinuance is a nullity and that the file as it stands is not accurate and merits accuracy. In addition, when I eventually apply for admission to the New York State Bar I will need to refer to this case and want the record accurate. Here is the beginning of the process to efile in Suffolk, which requires that I have a Notary and transmit for permission to 60 Centre Street:
Affirmed and signed, (certificate of signature in Efile)
Daniel M Rosenblum September 15, 2013
