|
DANIEL L. ACKMAN 201 West 89th Street,
#15B New
York, NY 10024-1848 TEL:212-496-2263 FAX:917-463-8819 June
5, 2000 Thomas Cahill, Esq. Chief Counsel Departmental Disciplinary Committee First Judicial Department 61 Broadway, 2d Floor New York, NY 10006 RE:
Sua Sponte Complaint Docket No. 2000.0301; Possible ethical violations by
Matthew Daus, Joseph McKay and Joseph Eckstein Dear Mr.
Cahill: I am graduate of the Columbia University
School of Law where I was a Harlan Fiske Stone Scholar. I was for five years associated with
Skadden Arps Slate Meagher & Flom.
During my time practicing law I was never accused of or cited for any
violation by any court or official body. I. BACKGROUND At all relevant times I was a journalist
and a masters candidate at the Columbia University Graduate School of
Journalism. In pursuing my masters
degree, I reported on the conduct of the Taxi and Limousine Commission, its
judicial forums, and its treatment of the city's 41,000 taxi drivers. Thus, in every incident described in TLC
Commissioner Diane McGrath-McKechnie's letter to the Committee, I was acting
as journalist and never as an attorney.
After the TLC filed its complaint with
the Committee, I did file a pro se Article 78 Action in State Supreme
Court in order to require the TLC to open its administrative hearings to the
press and public. In that action, I
prevailed. (See Ackman v. Giuliani, NYLJ Mach 17, 2000, Exhibit
1) My victory was reported in the New
York Times, on the BBC, and on many local radio and television stations. (See
exhibits 2-3) The TLC's charges against me have nothing
to do with my actions as a lawyer and everything to do with my inquiries as
an investigative reporter. They are
baseless, fraudulent and vindictive.
Despite my dismay at being accused, I am eager to respond. In addition, I take this opportunity to
alert the Committee to possible ethical violations by Taxi and Limousine
Commission lawyers Matthew Daus, Joseph McKay and Joseph Eckstein. II. Facts
Conspicuously Absent from the TLC's Submission: 1.
I was at all relevant times a student at the Columbia University
Graduate School of Journalism. 2.
In all my visits to the TLC tribunal, I was acting as a journalist and
not as a lawyer. 3.
I never represented anyone in any TLC tribunal. 4.
I never sought or accepted payment for my legal services in any TLC
court or matter. 5. I
never sought admission to any TLC court in my capacity as a lawyer. 6. In
my every encounter with TLC personnel, I identified myself as a journalist. 7. TLC
personnel, including Allan Fromberg, the deputy commissioner for public
affairs, and David Hind, the agency's chief of staff knew me as a student and
as a journalist. 8. Mr.
Fromberg made not one but several calls to deans and professors at the
Columbia University Graduate School of Journalism to complain about me. The TLC submitted its letter to the
Committee well after these conversations. 9. At
no time prior to the TLC's filing of its complaint did I ever meet or speak to
Diane McGrath-McKechie. Thus, all the
information in her letter must have come from Fromberg, Hind or other TLC
officials. III. The
TLC's Charges: The TLC's deliberate omission of relevant
facts should be sufficient to dismiss the complaint. I welcome, however, the opportunity to
rebut the TLC's charges in detail. All of my actions about which the TLC now
complains were in the best traditions of journalism, and of law. I sought only to report the truth. In doing so, I asserted the public's right
to seek access to the TLC's tribunals, and, as noted, I succeeded in winning
that access, which the TLC had unlawfully denied. In that action, the TLC raised many of the same claims as now
appear in its letter to the Committee in the guise of "equitable defenses."
My legal action was in support of my
reporting, which was to investigate persistent complaints of abuse and
unfairness in TLC tribunals. (For a Report by Prof. Michael Shapiro on my
resulting article, see Exhibit 7. For
some of my published stories about the TLC and taxi drivers, see Exhibits
8-11.) When read in light of the facts,
especially those facts the TLC omits, the TLC allegations are: (1) almost
completely false; (2) based on hearsay and on matters about which
McGrath-McKechnie has no personal knowledge; (3) willfully and deliberately
deceptive; (4) unrelated to my actions as an attorney and therefore beyond
the jurisdiction of this Committee; (5) do not amount to an ethical violation
even if true; and (6) are part of a disgraceful effort to harass and
intimidate me as a writer and as a journalist. Specifically, I did not act dishonestly
or fraudulently in violation of DR 1-102(A)(4). I did not act in any way to prejudice the administration of
justice in violation of DR 1-102(A)(5). Indeed, my actions can only improve and facilitate the
administration of justice. I did not
act in any way that would adversely affect my fitness to practice law in
violation of DR 1-102(A)(7). Again,
the opposite is true. Finally, I
never solicited employment as attorney in violation of DR 2-103(A). IV. Facts: My factual allegations are supported by
verified petition and sworn affidavit filed in Ackman v. Giuliani, the
action which resulted in an order that the TLC must admit the public to its
tribunals. (See Exhibits 4-5) As of this writing, I have never met or
spoken to Ms. McGrath-McKechnie. She
has no personal knowledge of the factual allegations in her letter, yet she
sees herself fit to accuse me of "dishonest, deceptive and
disruptive" conduct. She does
know that I have never acted or sought to act as an attorney in any TLC
tribunal. As will become apparent, it
is McGrath-McKechnie and the TLC who are dishonest and deceptive. I was until my graduation on May 17,
2000, a masters candidate at the Columbia University Graduate School of
Journalism. It was in my role as a journalist-- never as a lawyer-- that I
appeared at the Taxi & Limousine Commission's administrative
tribunals. McGrath-McKechnie knew this! Her spokesman Allan Fromberg had had
numerous conversations with me and with deans and professors at Columbia
about me. But she omits the fact from
her letter in a deliberate attempt to mislead the Committee. Calling the deans was an effort to
intimidate me. When that attempt failed,
it would seem the TLC went next to this Committee, withholding the fact that
I was acting as a journalist and not as a lawyer. As noted, at all relevant times I was a
student at the Columbia Journalism School.
While working on my masters project (equivalent to a long magazine
article) on the lives of immigrant taxi drivers, I met scores of
drivers. Almost to a man, these
drivers told me that what I should really be writing about is-- in their
words-- the corrupt, dishonest, Stalinist, Kafkaesque, kangaroo TLC
courts. The complaint was so
pervasive that it was my duty as a journalist to follow up on the charges. On or about January 6, 2000, I called
Fromberg, the TLC spokesman, and asked him if I could sit in on some
hearings. Fromberg told me that he
thought the hearings were closed, and suggested that I talk to one of the
lawyers who appear at those hearings instead. I took Fromberg to mean (incorrectly in his view) that I could
enter a hearing with the invitation of a lawyer. I then visited the TLC Tribunal on Rector
Street. There, I did meet with
lawyers who represent taxi drivers before the TLC. I also asked the receptionist if I could ask a judge for permission
to sit in on a hearing. I gave the
receptionist my business card (Exhibit 12) and identified myself as a
journalist at Columbia. The
receptionist asked me if I had spoken to Fromberg. I said I had. She asked
me what he said. I answered, "If
it's OK with the judge, I'm sure it's OK with Mr. Fromberg." I soon learned that it was not OK with
Fromberg-- no matter what the judge of the court said. He appeared red-faced and angry at the
tribunal (his office is three floors below) and accused me of misrepresenting
him. He told me that he speaks for
the commission and that his rule was that the TLC courts are closed to the
public. According to Fromberg, his
rule governed no matter what a judge of the court might say. I asked why and received no coherent
response. I asked whether the policy
was in writing and if I could see it.
Fromberg, in a bald-faced lie, said the policy was in writing and that
I could see it-- but not now. Details
of this encounter appeared in my article in The American Lawyer (Exhibit 11)
and in a New York Times articles dated March 11 and March 14, 2000. (Exhibits
2-3). On January 14, 2000, I visited the TLC
Tribunal in Long Island City. (In general, the Manhattan office considers
cases initiated by members of the public and the Long Island City office
considers actions brought by TLC inspectors or the police.) Again, I presented my business card and
identified myself to a clerk. I asked
to speak to a judge for permission to sit in on a hearing. Again, I was unlawfully denied access. I did, however, meet with Mr. Joseph Eckstein, the Assistant Chief
Administrative Law Judge of the TLC.
Eckstein offered to sit for an interview in the TLC's waiting room,
which we did. He also invited me to
interview lawyers and drivers. I
conducted such interviews after we spoke.
Eckstein saw me doing so without objection-- at first. Later on however, Mr. Eckstein and Mr.
Joseph McKay, Executive Director of Adjudication for the TLC came into the
waiting room and told me I was not permitted to be there. McKay first denied and then admitted that he
had spoken to Fromberg in the interim.
I advised them of my belief that the waiting room is a public area and
that I was within my rights being there.
They told me that the area was not public. When I asked if they were telling me to leave, Mr. McKay said
he was "suggesting" I leave.
When I told him I had the right to stay, they left the area. That day, I learned that Fromberg had
called the dean of the Columbia Journalism School not once, but several
times, to complain about my actions.
As noted above, this was part of an effort to intimidate me to make me
back off the story and my efforts to report on the TLC and its tribunals. On January 19, 2000, I visited the
tribunal on Rector Street. My purpose
was to meet lawyers who I knew would be in the waiting area. Though I did not ask to speak to Fromberg,
both he and TLC Chief-of-Staff David Hind approached me. I also never asked their
"permission" to conduct interviews-- since I needed no permission--
and never represented to anyone that I had such permission. Fromberg and Hind instructed security
guards to interfere with my efforts to speak to attorneys or cabbies in the
waiting area. While there was a
heated conversation, I was not "abusive." When I was reluctant to leave, Hind or Fromberg contacted a TLC
captain, presumably armed, in an effort to intimidate me. They later characterized their action as
out of concern for their safety. At no time did I "solicit"
employment as a lawyer at the TLC. I
have never represented a taxi driver or appeared in a TLC tribunal as
anything other than a journalist and a citizen. Never did I seek or accept any payment for my services as a
lawyer from any driver. I did,
however, as a journalist interview a number of drivers about their cases. At one point, however, during my
conversation with Eckstein and McKay in Long Island City, they told me I was
not allowed to be in the TLC area unless I was a lawyer. Thus I told them I am a lawyer. When they told me I still could not stay
unless I was representing someone that day, I turned to the driver next to
me, who I had been interviewing, and asked him "Do you need a
lawyer?" He said yes, so I told
McKay, "I'm his lawyer." At
Eckstein's insistence, I did fill out a notice of appearance, but never in
fact appeared as a lawyer for this driver or any other driver. I add also that I never disrupted the
business of the TLC, except to bring and win a lawsuit challenging its
illegal practices. On January 20, 2000, I attended an Open
Meeting of the TLC. At that meeting,
there was at one point an "open microphone" at which members of the
taxi industry or the public were invited to address the commission. One man, a former cabbie whose name I do
not recall but who is known to the TLC, arrived too late to sign up for the microphone. He rose and asked politely for permission
to speak in any event. He was
denied. A few minutes later, a TLC official (I
believe it was Deputy Commissioner Joseph Midolo, but I am not sure) sat down
next to him. I could not hear what he
said, but the man later told me that he told the official that he intended to
ask again for permission to speak. At
that point, he was surrounded by armed TLC inspectors and dragged from the
room. I followed him out, told him I was a
lawyer, and offered my help if he needed it.
Outside, he was handcuffed and arrested. I asked where he was being
taken and one of the officers informed me he would be processed at the 1st
Precinct. I have been taught that a good citizen
should be willing to bear witness to unjustified official conduct. I have also been taught that any lawyer
should be willing to offer his services to a citizen unlawfully
arrested. I call it being a good
Samaritan. That McGrath-McKechnie now
raises that conduct as an "ethical violation" speaks volumes about
her dangerous tyrannical streak. V. THE
TLC'S UNLAWFUL CONDUCT: As noted, I have acted in the best
traditions of the Bar and of Journalism.
The TLC's and its attorneys, however, have persistently acted in ways
that are both illegal and unethical: 1.
Deliberate Omission of Relevant Facts: The TLC, as detailed above, failed to
include numerous relevant facts in its letter to the Committee. These omissions can only have been
deliberate. 2.
Denial of Access to TLC Courts: Although the commissioner objects to my
seeking access to TLC tribunals, it is the TLC's action in denying access
that is illegal. Rather than open the
agency's courts to the press and public as New York State law requires, the
TLC, presumably counseled by Daus, forced me to file an Article 78 Action to
gain access. Many of the same charges
made in her letter to the Committee were trotted out in defense of that
action. (See Exhibit 6) I prevailed in that action in spite of
these "defenses." In a
decision dated March 2, 2000, Justice Stanley Parness ruled that the TLC had
shown no reason it should be exempt from the state's "strong public
policy" that administrative tribunals be open to the public. (See
Exhibit 1) The TLC had no real defense in that litigation
and has not appealed the Supreme Court's judgment. Yet it refused initially to comply with it. I attempted to gain access after the
decision was issued, as did Randy Kennedy, a reporter for The New York
Times. We were both denied access
personally by McKay and escorted from the building by David Hind. Their stated reason was that the decision
was "not final" and that they "might appeal." Having no legal grounds, the TLC never did
appeal. Even when Public Advocate Mark Green
attempted to gain admission, they permitted him access not as his right, but,
in Fromberg's words, "as an accommodation." (See Exhibit 13) 3. Unconstitutional Enforcement Tactics: In
the course of my reporting, I learned about many objectionable practices by
the TLC. Some are also lawless and
unconstitutional-- and many judges have so ruled. The execution of Operation Refusal is one such practice. In November 1999, Danny Glover complained
that as a black man he had difficulty hailing a yellow cab. While this complaint is long standing--
and no one denies it is often true-- the difference this time was a movie
star was talking. The TLC made an
equally loud response, with Mayor Giuliani ordering a sting operation--
"Operation Refusal"-- to catch race-biased cabbies. The TLC, for its part, announced a new
scheme of penalties in which it would confiscate taxis, summarily suspend the
license of any cabbie suspected of a a "bias refusal" and later
revoke that cabbie's license altogether. The TLC's action was unconstitutional and
had no basis in law. The TLC's own
rules-- Taxicab Driver Rule 2-50(b) and the related penalty provision, Rule
2-87(a)(1)-- clearly state the penalties for service refusal: a fine of
$200-$350 for the first offense; a fine of $350-$500 for the second offense;
on the third offense within 36 months, the driver's license shall be
revoked. (Copies of the pertinent TLC
rules are annexed as Exhibit 14.) Rather than follow the law-- or seek to
enact a new law-- the TLC announced that drivers accused of a bias refusal
would have their licenses summarily suspended and their taxicabs
confiscated-- on the first offense. Drivers would be entitled to a summary
"pre-suspension hearing" (after, in fact, they had already been
stripped of their licenses on the street).
On information and belief, the suspension has been upheld in every
Operation Refusal case presided over by a TLC judge. The full hearings of the Operation
Refusal cases, were as required by TLC Rule 2-87(h), held before the Office
of Administrative Trials and Hearings (OATH). OATH is a separate city agency that hears cases from all city
agencies and departments. Though the
OATH judges (in all or nearly all cases) accepted the TLC's version of the
facts and found that the driver had refused service, they all found against
the TLC on the law. The TLC argued that they could seek
revocation pursuant to Rule 2-61(a)(2) which prohibits actions "against
the best interest of the public."
At least a dozen OATH rulings rejected the TLC's construction. The OATH courts unanimously held that the
specific rule establishes the penalty and that there was no legal basis for
revocation. (For one such OATH
ruling, see Exhibit 15. Unlike TLC
court rulings, OATH decisions are available to the public.) The OATH judges were not asked to rule on
the validity of the suspensions which came before the revocation
hearings. But the same reasoning
indicates that these actions are also illegal. Even if the TLC made its initial argument
in good faith, which seems dubious on its face, its reaction to the OATH
rulings was deliberate and lawless.
Rather than accept the opinion of the OATH Courts, the TLC, directed
by McGrath-McKechnie and aided and abetted by Daus, McKay, Eckstein did three
things. First, they started to bring the
Operation Refusal cases before their own judges although the law dictates
that they be brought before OATH.
Second, when lawyers for taxi drivers made motions that the TLC
tribunals lacked jurisdiction, the motions were denied out of hand and
without reason. Third, when one of
their own judges ruled in favor of revocation, McGrath-McKechnie wrote a
letter to the OATH Chief Judge Rose Rubin, presumably counseled by Daus,
suggesting that all the OATH judges reverse their decisions to accord with
that of the TLC judge. Of course, the
OATH judge rejected this application, calling it "most unorthodox"
and "misplaced." Judge Rubin also noted that the TLC commissioner's
arguments, which prevailed in a TLC hearing, "were also made to the [OATH
judges], considered by them and rejected." (See Exhibits 16-17) Nevertheless, on February 18, 2000, Lisa
R. Rana the TLC Chief Administrative Law Judge wrote a memorandum to
"All Administrative Law Judges," with a CC to McKay, directing them
how to decide refusal cases: "Please be advised that, upon a finding of
a refusal, the Commission's policy requires that both the Rule 2-50B and Rule
2-61A2 violations be sustained." (See Exhibit 18) TLC Rule 2-85(h) states that the OATH
courts issue a "Report and Recommendation" to the TLC. The TLC can then "accept, modify or
reject" the ALJ's report. It
would seem that the commissioner desires the veneer of legality for her
actions. When she did not get it, the
TLC proceeded anyway. On May 25,
the Commission revoked the license of Jung Ho Park. Since deciding to simply bypass the OATH
courts, TLC judges have been routinely recommending the license revocation of
drivers who are found guilty of a service refusal. The TLC judges offer no legal reason for doing so. Instead-- per the instructions in Chief
ALJ Rana's memorandum-- they refer to "the policy of the Commission that
a service refusal is sufficient to establish [a Rule 2-61(a)(2)
violation]." (For one such TLC judge ruling, see Exhibit 19.) Based on such decisions by TLC judges,
McGrath-McKechnie has now started to order the revocation of licenses on her
own authority without even consulting the full commission. (See Exhibit 20) The TLC's unconstitutional actions in
Operation Refusal are but one example of its method of justice in
general. In my visits to the
tribunals, I have seen countless examples of
improper summonses, drivers being fined and suspended based on charges
without notice, drivers being made to wait all day for hearings that never
occur, drivers' testimony being routinely disregarded while TLC inspector
testimony is accepted without question.
When I asked Fromberg for the names of
the TLC judges-- the names of the judges!-- he told me to file a FOIL
request. I did, back in January, and
have received no response. The judges
are mostly lawyers in private practice who are hired by the TLC on a per diem
basis and have no tenure or civil service job security of any kind. Of course, all of these wrongs and other
have been hidden from public view by McGrath-McKechnie's policy of holding
its hearings in private. That I have
tried-- and succeeded-- to gain access is the real reason behind her
complaint to the Committee. The TLC's conduct in closing their courts
evinces a disrespect for the First Amendment and the Constitution. Considered in this context, the TLC's
complaint against me is particularly egregious. VI. Possible
Ethical Violations by TLC Attorneys Daus, McKay & Eckstein: In
suggesting the possibility of ethical violations by TLC counsel, I
incorporate by reference the factual material included above. Matthew Daus: Matthew
Daus is Deputy Commissioner and Legal Counsel of the TLC. He has supervisory authority over the TLC
legal department. On information and
belief, he authorized the shutdown of the TLC courts. Furthermore, also on information and
belief, he counseled McGrath-McKechnie and the Commission that the closing of
the TLC courts and Operation Refusal were lawful. Even after the OATH judges ruled against the TLC, Daus
maintained the position that it had the authority to revoke licenses on the
first offense and acceded in the policy of simply bypassing the OATH
courts. This wanton and blatant
disrespect for the law merits discipline by the Committee. Specifically, Daus appears to have
violated DR 1-102(4), (5) and (7). He
appears to have violated DR 7-102(7) by counseling or assisting a client in
conduct that he knows to be fraudulent.
Finally, he appears to have violated DR 7-102(2) by knowingly
advancing claims unwarranted by existing law. Joseph McKay: Joseph
McKay is the Executive Director of Legal Affairs for the TLC. He has overall supervisory control of the
TLC courts, subject to McGrath-McKechnie's oversight. His willful closing of the TLC courts and
his complicity in the unlawful actions in Operation Refusal demonstrates a
blatant disrespect for the law and merits discipline by the Committee. Specifically, McKay appears to have
violated DR 1-102(4), (5) and (7). He
appears also to have violated DR 7-102(2) by knowingly advancing claims
unwarranted by existing law. Finally,
he appears to have violated DR 8-101(2) by using his influence over TLC
judges to influence them to decide cases in favor of the TLC. Joseph Eckstein: Joseph
Eckstein was until early May 2000 the Assistant Chief Administrative Law
Judge of the TLC. In that capacity,
he was responsible in part for hiring, firing, and training TLC
administrative law judges and in assigning them work. On information and belief, in the past
several weeks he has switched positions and is now a lawyer in the TLC legal
department. In his new capacity, he
argues in cases in front of judges that he hired and supervised as recently
as a few weeks ago, and who he may supervise in the future. This lack of respect for even the veneer
of judicial independence, along with his complicity in Operation Refusal,
evinces a blatant disrespect for the law and merits discipline by the
Committee. Specifically, Eckstein appears to have violated
DR 1-102(4), (5) and (7). He appears
also to have violated DR 8-101(2) by using his influence over TLC judges to
induce them to decide cases in favor of the TLC. The conduct engaged in by Eckstein, McKay
and Daus may be characterized as dishonest, lawless, and
unconstitutional. This conduct holds
the law up to disrepute and powerfully demonstrates that taxi drivers cannot
expect fair or impartial justice in TLC hearings. VII. Conclusion: I am not moved by vindictiveness. Indeed, I suggested to Ms.
McGrath-McKechnie that she withdraw her complaint in light of Justice
Parness's ruling in my State Supreme Court action. She rejected my suggestion. (See Exhibits 21-22) Accordingly I respectfully request (i)
that the Committee dismiss the complaint against me and (ii) review the
conduct of Mr. Daus, Mr. McKay, and Mr. Eckstein and take whatever action it
deems appropriate. Please contact me if I can provide you
with any additional information. Respectfully
submitted, Daniel L. Ackman Encls.
Exhibits 1-22 |