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A criminal defense attorney’s unusual effort to gag a plaintiffs lawyer has been rejected by a New York judge. But the plaintiffs counsel apparently remains in potential professional jeopardy for allegedly violating a disciplinary rule barring attorneys from making prejudicial, extrajudicial statements. The matter involves Albany, N.Y., attorney John A. Aretakis, who is facing roughly a dozen disciplinary actions stemming from his advocacy for sex-abuse victims, mainly those who claim to have been abused by Roman Catholic clergy. Aretakis is an outspoken advocate whose public statements have repeatedly gotten him into trouble with disciplinary panels. His brush with the Criminal Court came in People v. Patrick D. Cascanet. Patrick D. Cascanet is a Schoharie County social services worker who was indicted on charges of abusing three boys. Aretakis represents five plaintiffs who claim they were molested by Cascanet. The attorney has, among other things, written to the judge presiding over the criminal case opposing a motion for severance. Albany attorney F. Stanton Ackerman of Ackerman, Wachs and Finton contends that the public pressure brought to bear by Aretakis and his clients led to a breakdown in plea negotiations. He filed a complaint with the 3rd Department’s Committee on Professional Standards, alleging that Aretakis brought the victims to open-court proceedings involving his client, tipped off the media as to the time and location of those proceedings, and made a variety of extra-judicial statements in violation of Disciplinary Rule DR 7-107 of the Code of Professional Responsibility, 22 NYCRR �1200.38. That rule prohibits attorneys from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” “Attorney Aretakis has attempted to influence the citizenry of Schoharie County; furthermore he has attempted to inflame his own clients and in my opinion, is doing a serious disservice,” Ackerman wrote in a complaint to the Committee on Professional Standards. Ackerman also sought a gag order to bar Aretakis from talking publicly about his client. But in a recent decision, Schoharie County Judge George R. Bartlett III refused to stifle Aretakis. Citing several cases, Bartlett said that while a court is empowered to restrict the speech of lawyers and other participants in a trial, it can impose such prior restraint only upon a showing of necessity and a finding that no less restrictive alternative would be just as effective in protecting a defendant’s fair trial rights. “Defendant’s requested relief, the issuance of a gag order, represents … a prior restraint on free speech,” Bartlett wrote. “It should not be issued absent a showing that dissemination of the subject information poses a serious and imminent threat to the defendant’s right to a fair trial. Here defendant makes no such showing.” Bartlett, however, made clear that the defendant has a right to seek a change of venue. He denied Aretakis’ motion for attorney fees. Meanwhile, the disciplinary complaint, which Ackerman filed three days after moving for a gag order, is apparently still active. Although such matters are confidential, Aretakis has disseminated the complaint on the theory that he, as the target, has the right to do so. The disciplinary panel has disagreed, and has taken action in the past against Aretakis for publicly releasing complaints. Aretakis, in response, notes that Ackerman also accused him in the gag order motion of violating DR 7-107. He claims res judicata bars the Committee on Professional Standards from now pursuing disciplinary charges based on the same rule. Judge Bartlett, however, based his ruling on constitutional law and offered no opinion of whether Aretakis’ conduct violated the disciplinary rule. RESTRAINING ORDER Earlier last week, an Albany judge signed a temporary restraining order barring Aretakis from picketing a church where, Aretakis claims, the pastor molested a child. The order issued last week by Justice Thomas J. Spargo requires Aretakis to stay at least 100 feet from the Holy Cross Church and School in Albany and to refrain from interfering with parishioners and others attending the church or school. A hearing has been scheduled for Tuesday. In a press release issued Thursday, Aretakis said the protest would continue over the weekend, with the protesters wearing tape over their mouths in parody of the restraining order.

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