The stigma of prosecution by the California State Bar and the fear of aggravating the State Bar advocates' irritability dams up almost any public exposure, whether pertaining to the State Bar Court's Hearing Department or its Office of the Chief Trial Counsel. Hungry for information that threatens any lawyer's livelihood, many attorneys scan the entire Discipline section of the Bar Journal, pretending a voyeuristic curiosity about the Members so subjected, where the real and legitimate interest lies in the basis for the discipline imposed. Nothing else in the Journal proves to merit their attention, and the discussion of discipline is no more inherently illuminating. What might cause an honest lawyer to fall afoul of the State Bar? This is the usually unspoken and futile question lawyers address to their reading of the Bar Journal. Whereas the process of prosecution will determine the level of due process, the Bar Journal acquaints lawyers with only the result.
These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest. The State Bar's incompetence should not excuse any complacency by attorneys or the public, as this kind of incompetence does not preclude numerous convictions. This paradox of the State Bar is the riddle that opens the way to understanding why the California State Bar is so incompetent. The paradox is that, incompetence notwithstanding, the State Bar can threaten honest practitioners.
The State Bar's incompetence grows from the absence of real controversies, that is to say, a dearth of seriously contested cases. The State Bar Court, at least through its Hearing Department, functions to avoid real controversies, not to hear them. Consider how the source of our law is the British common law, as it has been fed through the resolution of controversy, as it has evolved to a sophistication where many fundamental precepts have required only the most minute modification over decades, even centuries. The State Bar Court, however, can prevent the statement of controversies with sufficient explicitness to resolve them as matters of legal principle. Its mechanics consist of fear. A wrong tactical guess and an attorney finds himself involuntarily enrolled as inactive. Such a threat does not generate the bold yet small-scale innovations that drive the development of law. And where the law fails to develop in small matters, it must degenerate in large ones.
Bar law, like all law, must continually develop or else degenerate into bureaucratic reflex, but the legal framework governing the State Bar artificially inflates the need for rapid development at the same time as it systematically stymies it. An arcane case law, unavailable through common research tools, largely governs the State Bar Court. A proper respect for legal tradition and a wholesome acceptance of properly informed controversy — where lawyer-respondents know the governing law — would mandate adopting the Code of Civil Procedure, except where specifically amended by Bar rules. The State Bar does this right only for discovery rules. Otherwise, State Bar Court's "Rules of Procedure" wholly supersedes the Code of Civil Procedure, the former's cases confined to The State Bar Court Reporter, except where the State Bar Court’s extensive yet vague and ambiguous rules occasionally state otherwise.
This series ultimately targets the State Bar's simultaneously self-serving and self-defeating rules, buffering the State Bar Court from real controversy. The atrophy of legal thinking, puerility of legal conceptualization, and ham-handedness of execution — in short, the incompetence of the California State Bar's Office of the Chief Trial Counsel — is the concern of these installments. The next installment returns to the story that illustrates and proves this verdict.
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