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.