kanBARoo Court, 12th Installment. Lies of the State Bar

Even when you grasp that the California State Bar is oppressive and deceptive in pleading, you may remain incredulous that it lies outright. Yet trafficking in lies is its standard mode of operation. The State Bar's self-protective rules have perpetuated such incompetence that only by the lie can the State Bar hope to prevail.

The State Bar's Review Department remains unknown to me first-hand, and of it I venture no opinion. That will change, as I filed a Petition for Review. I also filed, as standard procedure, a Hearing Department motion to stay proceedings. Without a stay, the rush of events will moot the interlocutory review, grounded in the irreparable harm following from invasions of privacy unwarranted by proper notice of disciplinary charges, subjecting me to lawless State Bar fishing expeditions. Whether the State Bar has stated a disciplinary charge must be finally determined before the case continues.

As I expected, the Office of the Chief Trial Counsel opposed my motion for a stay. Tenacious procedural obstruction has always been the staple of incompetent lawyers, who, when blessed with power and entrusted with responsibility, seek support for their obstructionism in prevarication. Deputy Trial Counsel Melanie J. Lawrence writes in her opposition, "To date, Respondent has not filed a Response to the NDC." She adds the prevaricating footnote, "By Order dated November 9, 2007, the Court ordered Respondent to file a Response by November 25, 2007."

In fact the Hearing Department judge has always maintained that when the court orders filing a response, it means a responsive pleading. The court has also stated it will not issue advisory rulings. The court did not issue an advisory ruling to answer the NDC, when it ordered a response. Yet the Deputy Trial Counsel shamelessly misrepresents the procedural history to the court. The Rules of Procedure promote these lies, as they allow no reply brief to the Office of Chief Trial Counsel's opposition and provide for no oral argument.

So far I have violated no State Bar rules or California laws. Now readers shall get to witness an actual violation, although I maintain applying the rule here is unconstitutional. The rule states that settlement conference briefs are confidential, but I am going to disclose what Deputy Trial Counsel stated in her settlement brief. I shall disclose this confidential information because restraining my speech constrains my rights. Deputy Trial Counsel lied in her settlement proposal. She thought her lies would escape detection, because she knew I would not submit a rebuttal or attend the conference, consistent with my contending the court's ruling on November 9 stayed the proceeding until November 25.

Lawrence grasped at the opportunity to lie to the refereeing court. The distortions were numerous, but the overt lie concerned what are termed mitigating factors. Lawrence stated there were none, a lie.She knows of major mitigating factors, as I abundantly acquainted Lawrence with them, not as mitigating factors but as evidence of innocence:

1. Immediately upon discovering the fraud by staff, I closed my law office.
2. After recognizing that handling money is not my forte, I have not represented clients.

Mitigating factors do not concern me, because they apply only where guilty. Lawrence, however, lies about the mitigating factors to blacken my reputation with the judges and portray me as conscienceless.

Prosecutors are supposed to show greater ethical constraint than civil plaintiffs. Bar prosecutors, entitled to a measure of co-operation from respondents, might be expected to reciprocate by showing, not honesty, but a reluctance to perpetrate gross lies and deceit. Lawyers expecting respect for truth when they face the California State Bar are naive about that bureaucratic parasite.

kanBARoo Court, Interlude, Support

The following was posted at alt.politics.socialism.trotsky
(http://tinyurl.com/yvk8va)

Diamond on the Side of the Angels
The lawyers' monopoly guild -- also known as the State Bar of California -- has filed disciplinary action against Mr. Stephen Diamond, a frequent poster to this newsgroup.
Diamond's particular views, detailed in his posts over the years, are at times repugnant to proletarian morality.
But democratic rights are indivisible. Remember Dreyfus?
Mr. Diamond is subject to proceedings which are neither fish nor foul, an inquisitorial process in which he lacks even the nominal protections afforded to criminal defendants in the US system of class justice.
In turning against one of its own, that system exhibits the viciously uncontrolled character of the State Bar system itself, accorded a semijudicial stature without being subject to proper review by the capitalists' State.
Obscenely, this disciplinary action is ostensibly taken in the name of lower-income immigrant workers defrauded by some of Diamond's business associates. Every arcane procedural loophole the Lawyers' Trust employs against Mr. Diamond oozes its basic hostility to anything approaching the actual merits of a case: Imagine the situation of immigrant workers or business owners, whose knowledge of English is limited, trying to navigate the system controlled by that Trust!
Mr. Diamond's personal views sometimes oppose the interests of the international working class.
Those arrayed against him here are implacable enemies of Justice -- even that shade of Justice which avowedly serves the interests of the bourgeoisie.
Mr. Diamond's blog, "kanBARoo court: Critique of the State Bar Establishment; how legal ineptitude generates oppression" is at: http://kanbaroo.blogspot.com/ - posted by Avuitoca

kanBARoo Court, 11th Installment, What's Wrong with Fishing Expeditions?

A fictitious deposition segment of a State Bar respondent ('K'), by Deputy Trial Counsel ('J'):

J: You claim to have complied with the Rules of Professional Conduct, yet you have repeatedly lied before the courts of California.

K: Untrue.

J: Please look at this declaration. Is that your signature?

K: Yes it is.

J: You signed this declaration under penalty of perjury. Is that correct?

K: Yes it is.

J: Is everything you affirmed under penalty of perjury as true, actually true?

K: Yes, I don't execute declarations unless I know that the propositions I declare are true.

J: Was it true, then, that you required more than 35 special interrogatories in this simple breach of contract case.

K: Yes, in my judgment, I required more than 35 special interrogatories to properly discover the facts of the case.

J: But you took defendant's deposition. Could you not have asked those additional questions in the oral deposition?

K: I could have. But in my judgment, I needed to pin the defendant down before the deposition.
J: Based on your judgment that you needed to pin down the defendant, you declared under penalty of perjury that the questions were necessary. You justified an exception to the 35-question rule, an exception that must be based on actual need, on your value judgment that it would be helpful to ask for the answers in writing first?

K: Necessity is not subject to a bright line test. My standard for necessity did not diverge from the norm in the professional community.

J: Well, I don't think you are going to be the judge of that. But let's move on to another question regarding the truthfulness of this declaration. Are you aware that the Code of Civil Procedure states that signing any legal paper verifies under penalty of perjury that the document was printed on recycled paper?

K: Yes I am aware of the rule. I am also aware that few attorneys believe that the provision you reference was seriously meant for enforcement.

J: Spare us your self-serving opinions about what other attorneys do. This case is not about them. We took this paper to a chemical laboratory and established that it was not recycled stock. Do you admit it was not unrecycled paper?

K: I don't know what kind of paper it was. Whether the paper I printed the document on was recycled or otherwise is not something I or most attorneys worry about.

J: Whatever your excuses, you admit that you signed the document, thereby verifying under penalty of perjury that the paper was recycled. At best, you had no knowledge about whether it was or was not recycled. Do you think that satisfies the definition of perjury?

K: I'm not here to debate the law with you, but I do not think that perjury can be established constitutionally by statutory imputation of meaning. Perjury is determined from the facts and the four corners of the document.

J: Your legal opinions are of no concern to me. Regardless of whether you can be convicted of perjury, you signed a statement implying you knew the paper was recycled. Whether a criminal act of perjury or not, by signing falsely, you committed an act of moral turpitude, mandating your disbarment.

In this story, Deputy Trial Counsel J's fishing expedition paid off. Fishing expeditions in general have fallen into unwarranted bad repute. In deposing a party in a civil lawsuit, counsel is not limited to inquiring about potential evidence. The information sought may be fashioned to lead to the discovery of admissible evidence, even if the inquiry is not about that evidence. But if the information is not relevant, that information will not be admissible at trial. Either it leads to admissible evidence or in the end it is worthless. Not so with testimony before the State Bar, where the notice of disciplinary charges can easily be amended to encompass any matter discovered.

Rules and laws span the gamut in degree of their intent to be construed in all earnestness. Much of what a lawyer learns during his vaunted experience consists of knowing how seriously to take various rules. The recycled paper rule is a nice example of a rule few take seriously. When an attorney is charged with moral turpitude, little machinery exists to enforce a distinction as to the seriousness of the law's intent. A fishing expedition can thus be a devastating instrument of inequity. The only way to stop it is to insist on a proper, factual, notice of disciplinary charges.

kanBARoo Court, 10th Installment. Law Practice or Law-Business

The State Bar's Notice of Disciplinary Charges intertwines without distinguishing two broad issues. The first is my administrative service contract's lawfulness. The second is my ethical responsibility for the fraud the service's staff perpetrated. The State Bar alleges that I am responsible for the fraud because it resulted from the arrangement's impropriety. The State Bar also alleges that I am strictly liable in ethics for the misdeeds of my staff. These Installments have considered strict liability in ethics and will focus on this important issue again, but legally, strict liability in ethics is a nonstarter for the State Bar.

I didn't anticipate staff fraud, yet I anticipated that my manner of contracting would collide with the State Bar. The relevant question: is an administrative services general contract unlawful? If the contract was lawful, charges that the contract facilitated the fraud do not state disciplinary charges, even if the contract increased those consequences' likelihood. I have the right to rely on my partners in contract following the law, provided I have taken reasonable care.

The Notice of Disciplinary Charges alleges that I formed a partnership contract for the practice of law with nonlawyers. Much of the NDC depends on this allegation. The NDC alleges that I contracted with persons defrauded by staff, "through staff." These defrauded persons were unknown to me, and I did not direct, approve or ratify the fraudulent staff practices. The theory that I operated "through staff" requires that staff function as my agent. General partners bear the requisite reciprocal agency relationship, although only in a civil context. I am not liable, even civilly, for the torts of my staff committed outside the scope of employment, but I would be civilly liable for the torts of my general partner undertaken in the name of the partnership.

The State Bar has ignored that my contract does not meet the statutory definition of a partnership. To state the best argument, where the State Bar itself supplied none, they might argue that the contract substantially satisfied the definition of a partnership agreement. A law governing law partnerships might hold only certain aspects of partnership strictly essential to the definition. Applying the criterion depends on distinguishing the primarily relevant partnership factors for the practice of law. The problem can also be approached from the opposite side. What disadvantages go with restricting the practice of law to forbid various quasipartnership agreements? To see the disadvantage of restriction is to see the case for narrowing the concept of partnership applied to law.

Traditional law practice, sanctioned by a broad antipartnership law, fills all three roles with lawyers: legal, administrative, and entrepreneurial. The condition restricts the small law firm more: in solo practice, one attorney must fill all three roles. How much legal talent is wasted where the lawyer lacks the other skills or aptitudes? How many incompetent lawyers do we suffer because, to get entrepreneurial talent, you often must sacrifice legal talent?

The conventional answer to this problem is that the legally talented, nonadministrative, non-entrepreneurial lawyer should become the employee or associate of a lawyer with the full panoply of skills. This is no solution; it means the best legal thinking is not in charge of cases' conduct. To get to the top, attorneys need a mix of the other talents, each in approximately equal proportion, leaving numerous low-legal attorneys in control of offices. The pseudosolution of hiring expertise leaves the actual control and ultimate responsibility for prosecuting and defending cases to some legally unable attorneys. My administrative services contract—delegating administrative and entrepreneurial responsibilities—created a service-delivery super-standard for a client community. The State Bar hates this kind of contract. In this, the State Bar freezes a status quo of 'law as business.'

Tight restriction of lawyers' quasipartnership agreements harms the profession in other ways. When a lawyer who actually controls an office must be a lawyer and a businessman, law becomes as much a business as a profession. The traits that inherently mark the businessman rather than the lawyer proliferate among the profession. Many of the disagreeable characteristics of lawyers owe to the personalities of businessmen. Businessmen want to be bosses — to boss other people around. The administrative side of the law office is the side where you order people about, hire them, and fire them. Often, power-hungry people aspire to this station.

The unity of law/administration/entrepreneurship, ensconced in a broadly interpreted anti-partnership law, inescapably picks a particular template for the lawyer personality. The profession should not foster this alien template, as essence or public appearance.

• If a particular aspect interests you, and you want to hear more, do not hesitate to comment. No registration is required, and I will not censor comments.
• If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my (at least) thrice-weekly installments.
• If you like the legal theory, my writing, or want to know more about what services I provide for litigation and trial attorneys, see My Profile.

kanBARoo Court, 9th Installment, Continued response to critics

Discussion continues at misc.legal, where I posted this further response in the thread at http://tinyurl.com/2dy669:

My response had nothing to do with the ineradicable nature of Internet publications. As I pointed out, I intentionally admitted a form of managerial negligence, and I quoted from my pleadings to prove that I had admitted the same directly to the Bar. The blog proves no admissions not made in the actual proceeding.

----Poster commentary that I do not reproduce because of denial of permission-------

Since you are not a lawyer, what warrants assuming that you know better than I the potential benefits and perils of hiring a lawyer? No other attorney would consider using the arguments on which I center my defense. In defending myself, I need not worry about my client alleging malpractice for the unconventionality of my approach. Any hired lawyer would have to consider this.

The approach the Bar Defense Establishment takes is to avoid conflict and impress the Bar with the respondent's remorse. Before my case even comes to issue, the Deputy Trial Counsel already complains that I have shown myself remorseless. Experienced California attorneys know the California State Bar is a vindictive claque, and the defense attorneys dedicate themselves to avoiding the State Bar's lasting enmity.

I have nothing to hide, as cannot be said of the California State Bar.

• If a particular aspect interests you, and you want to hear more, do not hesitate to comment. No registration is required, and I will not censor comments.
• If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my (at least) thrice-weekly installments.
• If you like the legal theory, my writing, or want to know more about what services I provide for litigation and trial attorneys, see My Profile.

kanBARoo Court. 8th Installment. Reply to Critics: An Overview

To be resolved properly, legal issues must be debated. Since little real controversy seeps into the California State Bar Court, I have tried to develop controversy on this blog. In further pursuit of controversy, I posted the 7th installment on the newsgroup misc.legal. Two attorneys responded, although they did not answer my invitation to post their comments to the blog. The thread is at http://tinyurl.com/2zaea3 Without taking unauthorized liberties by direct quotation, I shall deal here with those arguments going to merit.

I asserted that procedural issues concerning notice and due process were at the heart of my case. One poster said the merits of the State Bar's allegations were central. The distinction here is between "my" case and the State Bar's case. More substantively, the poster believes that the nature of the State Bar’s allegations (see 3rd Installment) is clear. The poster agreed with me on the pure question of law that conclusory allegations were insufficient to state a disciplinable offense.

The State Bar alleges that I misappropriated client funds. I maintain that staff members perpetrated fraudulent acts, but the misappropriation occurred without my knowledge, approval, or ratification and despite my supervisory efforts. The Deputy Trial Counsel and other State Bar officials maintain in correspondence that the attorney is liable for the acts of his staff. I would be happy to resolve this issue as a matter of law. It is crystal clear that the State Bar is wrong on the legal cognizability of strict ethical liability.

The State Bar knows it would lose taking a straightforward approach. The State Bar has oppressed many attorneys through its dogma of strict ethical liability. The Bar's successful history prosecuting under a legal theory unapproved by any court has made it arrogant in its private construals of law, but not so arrogant as to base a case on interpretations so jurisprudentially anomalous.

Instead, the State Bar Court's Office of the Chief Trial Counsel alleges that I performed the acts in question "through" various staff members. The Bar's formula is vague and conclusory with respect to the key issues, such as how did I engage and cheat those defrauded, "through" these staff members. Is the Bar saying what it believes, that I committed fraudulent acts, as a matter of law, because my staff did? Then their notice of disciplinary charges should state this legal theory, and it should not leave open the competing interpretations.

On its face, my committing acts of misappropriation through staff members would mean I instructed the staff members to engage the clients and misappropriate their money. But the State Bar refuses to state its meaning with particularity, by alleging that I instructed the staff members, had knowledge of their fraudulent conduct, or ratified it. An intermediate meaning sometimes mooted would hold I acted with gross negligence in failing to supervise my staff. If the State Bar so alleged with particularity, it would lose, as I can prove my active regard for securing funds my office received.

This failure to allege the charges with particularity characterizes the State Bar's quotidian functioning. It means one thing, states another, and hopes it can discover evidence of what it does not state. The State Bar misuses the notice of disciplinary charges to license a fishing expedition. It can support only its delusion-based theory that a lawyer is strictly liable in ethics (not civil controversy, remember) for the acts of the attorney's staff, but it refuses to state the theory and expose it to refutation.

This incompetent and oppressive pleading style allows the State Bar more than its fishing expeditions. It gets voluntary convictions and even resignations. Since the State Bar avidly tells respondents its private theories, most lawyers accept their guilt, based on an unlawful unpled theory. These attorneys compromise their cases, based on the State Bar theory of strict ethical liability. My defense stands for exposing and discrediting this deceptive and oppressive pleading practice.

Moving now to the comments of the other poster, he advises me to get rid of the blog, because of the self-defeating admissions it contains. I admit potentially damaging facts. Deleting the blog would be futile, because the blog merely quotes what I already filed. The poster is referring to a paragraph from my motion to dismiss the notice of disciplinary charges, quoted in the 3rd Installment, where I state:

Respondent hoped to test in practice his theoretical ideas concerning the effective delivery of legal services to non-mainstream cultures. If necessary, the enterprise would also test respondent's interpretation of rule 1-310 of the Rules of Professional Conduct, because of the contractual terms on which respondent ventured. J.B. Kim agreed to fund and staff the office operations and provide a skilled negotiator. Kim would report directly to respondent, and respondent would have ultimate control of the office and complete control of the practice of law within it. Respondent, viscerally averse to the mechanics of financial management and effectively incompetent in their execution, sought to delegate the operational responsibility for keeping the books, while maintaining a robust system to monitor Kim’s compliance.

The poster says that I admit I was a name for hire and unable to manage the law office. The "name for hire" is unsubstantiated and false, because I supervised the legal operation of the office and prosecuted my clients' cases. My financial-management incompetence is indeed an admission, made because I do not want to play a procedural game, even though in such a game, played against the California State Bar, I should expect to prevail. When some defrauded persons wrote me, I informed them that while I denied responsibility for their loss, they might have a cause of action against me for negligent staff supervision. But the Bar does not allege negligence. While a civil case so based might possibly be tenable, my financial ineptitude and my failure to appraise it or its implications accurately is not subject to State Bar discipline.

• If a particular aspect interests you, and you want to hear more, do not hesitate to comment. No registration is required, and I will not censor comments.
• If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my (at least) thrice-weekly installments.
• If you like the legal theory, my writing, or want to know more about what services I provide for litigation and trial attorneys, see My Profile.

kanBARoo Court, 7th Installment, My Defense in a Nutshell

The gravamen of my defense before the California State Bar Court is that conclusory notice of charges is insufficient to meet the pleading requirements of the State Bar Court's Rules of Procedure. (Rules Proc., rule 101(b)(2) & (3).)

My case's procedural form can conceal the core issue, right to notice, as a matter bearing on high policy, not only individual cases. If my experience is typical—and why should it not be, absent legal obstacles to deter the State Bar Court—then the modus operandi of the State Bar is to file the most general allegations, with no showing of how particular alleged infractions violate the rule or statute in question. The Office of the Chief Trial Counsel then launches a fishing expedition, where the respondent has protection inferior to that afforded in ordinary civil or criminal matters. This conduct defeats the purpose of initial pleadings and formal charges.

My case rests on two foundational premises, establishing pleading requirements in the California State Bar Court:

1. The California Supreme Court reprimanded the State Bar Court in a line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar of California (1990) 51 Cal.3d 609; Baker v. State Bar (1989) 49 Cal.3d 804 ; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968.). The Supreme Court offers commentary comical in its seeming futility. In each opinion, the Supreme Court inserts a frustrated remonstrance: "Once again we are constrained to call to the attention of the State Bar Court the importance of identifying with specificity both the rule or statutory provision that underlies each charge and the manner in which the conduct allegedly violated that rule or statutory provision. While petitioner here does not complain of any due process violation in lack of notice, this specificity is also essential to meaningful review of the recommendation of the State Bar Court."
2. The general rules of pleading that underlie the State Bar's Rules of Procedure are committed on principle to factual pleading.

The Supreme Court warned repeatedly that the State Bar provides insufficient notice when it fails to connect law and wrongful conduct. Yet, the theory has not been used by any previous respondent. The failure to apply the law after it has been set out points to the extremely low level of practice in State Bar Court defense. These installments discuss the causes.

kanBARoo Court, 6th Installment, The Benninghoff Miscarriage of Justice

The State Bar Establishment feeds rule by bureaucratic reflex and justification by cheap moralism. A section of the law professariat avidly supports this trend as affording license to display their moral superiority. These are natural allies of the State Bar Establishment. Astute observers know that those most aggressively publicizing their moral credentials likely are themselves psychopaths, particularly when they do it to others' detriment.

What to surmise when a law professor begins a blog entry with: "Don't be a sleazeball"? What to surmise when this professor's errors of fact are pointed out, the law professor considers the matter so unimportant that he deigns not even to correct the errors of fact. The State Bar as constituted is not the institution to do it, but outrageous libelous publication warrants discipline for moral turpitude. Certainly the demonstrated lack of concern for truth warrants the writer's removal as a law professor.

The blog entry belongs to one Professor Shaun Martin, and the entry appears at http://tinyurl.com/244lqw The case on which Martin comments is published at Benninghoff v Superior Court (2006) 136 Cal.App.4th 61. Professor Martin recites facts scarcely recognizable as belonging to the same case. Martin's most egregious errors are 1) he pretends that the court found that Benninghoff's representation before federal administrative law courts was unauthorized practice of law, when Benninghoff prevailed on this issue; and 2) Martin pretends that Benninghoff was found to have violated laws barring the unauthorized practice of law, whereas the Court of Appeal refused to rule on that question, finding instead that Benninghoff breached a special set of standards pertaining to the practice of law by former attorneys. The first lie is so false and so foul that I will abjure further discussion, lest the stench — to use one of Professor Martin's choice terms — prove infectious. The subject of this installment is the second misrepresentation of the facts and the court's opinion because it highlights the pitfalls in Bar Defense by even experienced and zealous advocates and points to the level of legal theorizing necessary to keep the State Bar from devouring the law.

Benninghoff's web site at http://www.administrativelaw.net/ shows that the Court of Appeal failed to mention substantial contrary law argued before it. This showing did not suffice to win a Supreme Court review. To prevail, Benninghoff needed to raise deeper issues of law. Had the court said that the law prohibits nonattorneys appearing at administrative hearings, the issue could be addressed at the familiar level of case law and judicial council opinions. The court did not address it at that level because the State Bar would not have prevailed on those considerations, precedent considered. The Court of Appeal opted to save part of the State Bar's case by distinguishing the duties of a resigned or disbarred attorney, on the one hand, and laymen who have never been attorneys, on the other. By making this distinction the Court of Appeal reached the decision it apparently wanted to reach, but it did so by crafting a rule absurd on its face and unconscionably arbitrary on analysis.

When you go up against the State Bar, you deal with a legally unsophisticated agency that will take any of your rights it can. That is the only way the California State Bar can function, as it lacks the legal aptitude and experience to litigate difficult questions of professional ethics. The workload facing the appellate courts these days is so heavy that you cannot expect the court to recognize the absurdity of the State Bar's position spontaneously. You must fight a battle directed against the oppressively arbitrary distinctions the State Bar will try to foist on your case, attacking them at their root, not at the most superficial legal level possible.

Superficial attack is usually the favored way to proceed. You don't raise questions of constitutional magnitude unless you absolutely have to. When you have a serious case before the State Bar, you have to. You must energetically break certain routines and habits of ordinary litigation, because you are encountering a force whose strength consists of its brazen willingness to draw arbitrary and oppressive distinctions and of its institutional connections, which gain acceptance for its travesties.

Think about what the State Bar is saying and what the Court of Appeal held. The State Legislature can impose special punishments on persons based on their occupational history. When you become a lawyer, you forfeit forever the rights everyone else has, even (and especially) if you cease being a lawyer. Having been a lawyer, according to the Court of Appeal, you can never again represent parties in a lay capacity, even where anyone else but a former lawyer has this right. This must strike any fair-minded person as oppressive and insane. What will the next law be: that any citizen can home school his children unless he has previously worked as a teacher?

Fortunately, there is a term for such legislation — or as here, construal of legislation. Standards are in place to preclude these arbitrary manipulations of the law, to prevent the courts or the legislature depriving citizens of rights unrelated to any punishment for any crime they have suffered conviction. As any fair-minded person's gut reaction will tell him, precluding this kind of law is a very basic kind of right. It is so basic that to reach it, you need to go to the original U.S. Constitution, beyond even the Bill of Rights. If the concepts are unfamiliar, it is because no one except the State Bar would propose a distinction so invidious and have the social weight to get approval by the Court of Appeal.

Benninghoff v. Superior Court construed Government Code section 6126, subdivision (b), in so crazy a manner that it turned it into a bill of attainder. The prohibition of bills of attainder serves the separation of powers, the prevention of legislative infringement on the judiciary's prerogatives to find guilt and to punish. "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply — trial by legislature." (U.S. v. Brown (1965) 381 U.S. 437, 440.) As James Madison explained ""Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation." (Federalist Number 44 (1788).)

The Legislature cannot pass laws specially punishing resigned or even disbarred attorneys without trial and remain within the U.S. Constitution. Punishment is for the judiciary, and any law construed as a bill of attainder must be invalidated. The Bar Establishment must be precluded from imposing punishment by attainder on lawyers and obfuscating the real issues with its strident moralism. To fight the Bar you must be able and willing to deal with the most fundamental issues.

• If a particular aspect interests you, and you want to hear more about it, do not hesitate to comment. No registration is required, and I will not censor comments.
• If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my (at least) thrice-weekly installments.
• If you like the legal theory, my writing, or want to know more about what services I provide for litigation and trial attorneys, see My Profile.

kanBARoo Court, 5th Installment, Good Cop, Bad Cop at the State Bar

In prosecuting a State Bar case, the California State Bar's Office of the Chief Bar Counsel plays bad cop, and the Hearing Department of the State Bar Court plays good cop. These departments of the California State Bar work in concert. Not that they admit the complicity, but neither do they otherwise take any pains at concealment. Collaboration is evident from the timing of the court's processing of the papers: the way the Hearing Department expedites those matters and only those matters whose expeditious handling serves the Office of the Chief Trial Counsel.

A recent example. I was promised — more precisely, threatened with — expeditious handling of my motion for reconsideration of the State Bar Court's denial of my motion to dismiss the Notice of Disciplinary Charges. Eleven days passed after parties completed all filings. So much for expedited handling. Sometimes the opposite of expeditious handling serves the Office of the Chief Trial Counsel. Here, the State Bar Court aided that office to try to proceed to deposition before my motions tested the NDC. The court tried to give the Office of the Chief Trial Counsel the fishing expedition it wanted. If the Hearing Department decided it had to grant my motion to dismiss — the Rules of Procedure and at least six Supreme Court decisions directly require it — the Hearing Department would help the Office of the Chief Trial Counsel place another NDC in its stead. The Hearing Department would try to make sure the Office of the Chief Trial Counsel had the facts it needed, by allowing their collection before the case is at issue. The Hearing Department tries to minimize the respondent's rights, within the scope of reasonable minimization of the probability of reversal.

I had turned the legal tables on the State Bar, however, by basing my opposition to the motion to compel on the NDC's pendency. My opposition to the motion to compel arrived at the State Bar offices this Monday. That same day, the court issued its denial of my motion to reconsider. This rate of response is not a typical Hearing Department response rate; never, ordinarily, on the same day. I cannot explain timing so responsive, except where the Office of the Chief Bar Counsel pointed the Hearing Department to my connecting the two pleadings.

These observations may fall short of the standards for admissible evidence, but the prior question is: do the usual rules against ex parte communication actually govern the State Bar? To the contrary, do the judges of the Hearing Department regularly confer informally with State Bar counsel? Are they then violating any rule or statute; do they know it?

Besides the obvious nexus between these two departments of the State Bar Court, aspects of public policy that actually encourage ex parte communication between these departments provide another reason to doubt the State Bar feels constrained to avoid ex parte communication with Hearing Department judges. In Los Angeles, the Office of the Chief Trial Counsel and the Hearing Department of the State Bar Court reside respectively on floors four and five of one office building. Without knowing which, one must question either the wisdom or the intent of such propinquity. The physical arrangement alone bespeaks an enormous public-policy confusion and indecision regarding State Bar Court judges' independence from the Office of the Chief Trial Counsel.

An additional policy nexus between these departments of the State Bar — Hearing Department judges have been known to receive jobs as Chief Trial Counsel, the judges themselves seeking out the job change, because they consider the prosecutorial position a promotion. The Chief Trial Counsel is the quarterback of the State Bar team.

Decisional law construing administrative law guarantees an independent hearing in an administrative law court. The Supreme Court based that guarantee on its interpretation of relevant Government Code sections, which established standards for administrative law courts. The State Bar Court, similar in function to courts like those charged with disciplining physicians, has the trappings of an administrative court. However, the State Bar Count is not an administrative court; to the State Bar court, the laws governing administrative courts do not apply, and the decisional law interpreting those statutes does not apply. For the State Bar Court is a sui generis organization, from which status stems a considerable part of its mischief, as no well-construed body of law regulates it. Nowhere in the general appellate case law do you find any holdings imposing (or denying) the right of a State Bar Court respondent to enjoy freedom from bias by private communications from the Office of the Chief Trial Counsel. The Rules of Procedure of the State Bar Court expressly exclude the Government Code and the Code of Civil Procedure from applying to Bar case. A review court typically invokes those bodies of code in finding error due to ex parte communication.

In totality, however, the State Bar's governing law clearly bans ex parte communication with the judge, although no procedure is in place to effect that ban or even to reiterate it. For although the State Bar is charged with enforcing the Rules of Professional Conduct, in its own practice the Enforcement Division is particularly prone to ignore them. Rule 5-300(B) states that "A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer … " We on the outside of the State Bar Establishment, however, have no way of knowing whether the State Bar often abides by this rule or regularly breaches it. From appearances, it not only breaches the rule but also is aware of the transgressions only to such a degree that it refrains from admitting them. The State Bar takes few pains to keep the collaboration opaque to inference.

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kanBARoo Court, 4th Installment: The State Bar & Its Academic Allies Undermine Legal Sophistication

Although attorneys form the primary intended audience for these installments, I fear that the Bar-establishment's mindset can damage our legal institutions beyond the direct effect of regulatory policies on attorneys. The following contribution to discussion by a bar-establishment academic makes me think I should have broadened even the primary audience. Both the position and reasoning expressed are frighteningly authoritarian, and they undermine everyone's basic democratic rights.

Bar-establishment academic Jeff Lipshaw discusses in a post entitled "Anonymity, Chatboards, and the Imus Defense" (http://tinyurl.com/2nb2ob) a proposal by a law librarian to require that bar candidates provide a complete list of all online names the candidate used while a law student. Lipshaw does not outright advocate this measure. Rather he gives it favorable coverage while expressing some undisclosed reservations, rather in the manner of Hillary Clinton when commenting on New York Governor Spitzer's immigrant automobile-licensing proposals. That Lipshaw has no fundamental differences with such a measure came out clearly when he responded to a commenter.

The anonymous commenter wrote "The last time I checked, the First Amendment protected anonymous speech. Perhaps our legal academics here need a refresher course in constitutional law."

Mr. Lipshaw retorted, "[W]hile there may [emphasis added] be all sorts of First Amendment protections around anonymous speech, there is no First Amendment right (or any other constitutional right) to be licensed by the state as a lawyer, any more than the Fourth Amendment guarantees you a right to board an airplane, or enter the Supreme Court chambers, without being searched (perhaps our anonymous posters need a refresher course in the Legal Profession). So whether or not there is an affirmative obligation to reveal your identity, one of the risks you take by yapping anonymously (subject to metadata, of course) is that you aren't really anonymous, and when something you thought you said anonymously that reflects on your ability to pass muster under the moral character requirements of the bar admission process turns out not to be anonymous, you have just encountered a real-world consequence of exercising a right. Sorry to burst the bubble."

My comment, not posted on the law professors' "moderated" blog was:

Inquiry that penalizes the exercise of First Amendment rights by preventing those exercising them from practicing law is certainly constitutionally prohibited. (See Baird v. State Bar Arizona (1971) 401 U.S. 1, 8 ["[W]e hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law."])The balancing tests applied to the Fourth Amendment matters do not mean that the search scenarios fall outside the Constitution. They show only that no right is absolute. You would be hard pressed to show a compelling state interest in students' anonymous and lawful postings.

As the Baird court established, a threat to the right to practice law is a general threat to liberty. Such a threat would pose considerable risk to liberty if it threatened only the rights of attorneys. But it does more. If you tell citizens that their "yapping" (Bar-establishment talk for free speech) will imperil their rightful options, such as becoming a lawyer, it restricts the exercise of their rights, regardless of whether the citizens are presently lawyers and even if they do not end up choosing the profession. Diminishing citizens' opportunities by dint of the exercise of rights interferes with their free exercise. The oppressiveness of the bar establishment, even when robed in academic gowns, threatens all civil society. And it is borne of the kind of incompetence in legal reasoning here demonstrated by Mr. Lipshaw, an incompetence that grows out of the State Bar enforcement culture.

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