This installment presents some court filings by the State Bar. First I will print and comment on, by way of update, the “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay; Memorandum of Points and Authorities.” My motion for reconsideration and request for immediate stay is here. My original opposition, appended to the motion for consideration, is here. Then we’ll look at a State Bar filing that is, depending on your mood, particularly funny or hideous.
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Begin the State Bar's Document
Memorandum of points and authorities
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. So, this Court does not have jurisdiction to order Respondent to appear for an Order to Show Cause. That remains the position of the State Bar. Without Waiving that position, the State Bar submits this opposition.
I. Respondent has failed to state any grounds for the Hearing Department to issue a stay of these proceedings.
Respondent cites no rule which provides for any generalized stay of proceedings in the Hearing Department. Stays of proceedings in the Hearing Department may only be granted under certain terms where a Respondent’s physical or mental condition is at issue or when a party files a petition for interlocutory review. (Rules 184 and 300(h)(1), Rule of Procedure of the State Bar of California). Neither circumstance applies in this matter. Rather, it appears as if Respondent seeks to renew his prior request for an immediate stay filed November 28, 2007, in which he asserted he intended to file a petition for interlocutory review but never properly did so. That request was denied by this Court on December 4, 2007, for want of good cause. Now, Respondent has waged a campaign against the assigned Deputy Trial Counsel and court clerk in which he alleges a variety of misdeeds and conspiracy theories that have no basis in fact. His unfounded, libelous, and absurd allegation do not provide any legal ground for this Court to grant a stay.
II. The Motion does not state new or different facts, circumstances or law and the Court’s decision does not contain any error of fact or law.
Grounds for a motion to reconsider are new or different facts, circumstances, or law or that the Court’s order or decision contains one or more errors of law or fact. (Rule 224(b) of the Rules of Procedure of the State Bar Court.)
Respondent seems only to assert that the Court did not consider his opposition to the State Bar’s Motion for Entry of Default, as his grounds for seeking reconsideration. In fact, he attaches as Exhibit A, his Opposition to Motion for Entry of Default. But here, the Order to Show Cause was issued after the State Bar made a Motion for Terminating Sanctions. The Court ordered Respondent to file an opposition to that motion on or before 5;00 p.m. on December 11, 2007. He did not. So, Respondent has failed to allege any grounds for the Court to reconsider its Order requiring Respondent to show cause as to why terminating sanctions should not be imposed.
Conclusion.
Respondent has failed to assert any proper grounds for relief. His motions should therefore, be denied.
END the State Bar's DOCUMENT
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The prosecutrix, as she mentions above, has filed her own motion for reconsideration. The State Bar has again involved itself in an impermissible procedural incompatibility, arguing in one motion that the court is without jurisdiction to order the OSC and in a contemporaneous opposition that the court should not reconsider its order.
The prosecutrix tries to pretend that nothing new has happened, but an immediate stay, based on interlocutory review, is justified, because my filing attempt was thwarted by foul play. The prosecutrix does not mention the evidence, her inability to produce the document in question. She has never offered to prove it in her possession or control. Yet she has admitted receiving it. My simple argument is that if she didn’t provide the clerk with the copy returned to me, without proof of service, then where is her copy? If she happened to lose it, did I just happen to know, or did I supposedly take the great risk of making a claim that, if false, she should easily refute? I don’t think she will be getting away with this, but if she can, the institution in question is no longer serving as a court of law.
So what is the court doing. Nothing. Fifteen days have passed since I filed my motion for reconsideration and request for immediate stay, sending a copy by certified mail to Judge Honn, and the court has said absolutely nothing. The court, no doubt, is waiting to sort matters out at the OSC it calendared for January 2, or else, to find a way to avoid the issue at that convocation. My anti-waiver strategy dictates that I not attend, and I shall not. I harbor no doubt that under the strong evidence presented of reversible misconduct, I am entitled to hear something from the court by this time. I cannot be required to participate in hearings, when I am denied ordinary access to the court through the clerk’s office in preparation.
The court ordered the OSC to determine whether my failure to cooperate with discovery should be entered as an aggravating factor. At such a hearing, the judge could easily deny even hearing my argument for a stay. Paranoid? To get a real idea of the police state thinking of State Bar Enforcement, consider the prosecutrix’s brief for the January 2, 2008 hearing. Alternatively, you may find these documents hilarious.
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BEGIN State Bar's DOCUMENT
Statement of non-waiver
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. That remains the position of the State Bar. Without waiving that position, the State Bar submits this brief at the Court’s invitation.
Respondent’s failure to cooperate in these proceeding should be considered an aggravating factor in determining the appropriate level of discipline.
Aggravating factors are not required to be separately charged but facts that could have formed the basis for an additional charge which are not in the Notice of Disciplinary Charges cannot be relied on in aggravation where, for example, a Respondent is found in default and not fairly put on notice that such facts will be relied on (Matter of Heiner) 1 Cal. State Bar Ct. Rptr. 301 [emphasis added].) Here, by way of this Court’s Order of December 12, 2007, Regarding Motion for Entry of Default and Order to Show Cause on Motion for Order Imposing Sanctions, Respondent has been put on notice that his failure to cooperate in these proceedings may be considered an aggravating factor.
Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct and lack of cooperation wit the State Bar during disciplinary proceedings. (Std. 1.2(b)(v), (vi).)
A respondent’s sporadic participation in disciplinary proceedings despite warnings from the judge demonstrates indifference to professional obligations and a substantial risk to the public. (Matter of Boyne (1993) 2 cal. State Bar Ct. Rptr. 389.) Also, a respondent’s use of specious and unsupported arguments in an attempt to evade culpability demonstrates a lack of appreciation for his misconduct and his obligations as an attorney, and the persistent lack of insight into the deficiencies of his professional behavior is an independent, aggravating factor (Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631.) So too is a respondent’s use of obstructive tactics during the disciplinary proceeding including abuse of discovery and frivolous motions and a respondent’s lack of appreciation of the necessity for timely, meaningful participation in the disciplinary process. (Matter of Varakin 91994) 3 cal. State Bar Ct. Rptr. 179; Matter of Hunter (1994) 3 cal. State Bar Ct. Rptr. 63.)
Here, Respondent has consistently failed to file a response pursuant to Rule 103, despite the rules requiring it and this Court’s orders that he do so. He has failed to participate in discovery, requiring the State Bar to file a Motion to Compel his deposition which was granted. Thereafter, he failed to appear for the deposition. He failed to file a pre-trial statement. He has filed numerous untimely and procedurally incorrect, motions in which he ha raised specious and unsupported arguments and has accused the assigned Deputy Trial Counsel and court clerk of a variety of misdeeds and conspiracies that have no basis in fact and that rise to the level of paranoia, absurdity, and libel. All of those factors can and should be considered aggravating in this Court’s recommendation of the appropriate level of discipline in this matter.
Conclusion
Respondent has had proper notice that uncharged misconduct may be considered by the Court in determining the appropriate level of discipline in this matter. There are a number of aggravating factors that the Court can and should find in recommending the appropriate level of discipline.
END State Bar's DOCUMENT
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A few points:
1) The State Bar thinks that without having proven the predicate, it can reasonably assail me for failing to “atone” for the consequences of my alleged misconduct;
2) Although I have filed numerous papers arguing that I cannot be required to participate in discovery until exhausting my challenges to the notice of disciplinary charges, the State Bar has never responded to those arguments, except by characterizing them as “specious.” Instead it pretends that it can condemn conduct without even considering the justifications offered, the sclerosis of a bureaucracy that has never had to fight for its positions fairly;
3) The State Bar claims I have presented no evidence for the prosecutrix’s misconduct, whereas in light of her failure to claim possession of the subject document while admitting receipt, I have actually proven that misconduct;
4) The State Bar repeatedly claims that I failed to file a timely responsive pleading, although the court has repeatedly accepted my documents and termed them responsive pleadings;
5) Very oddly, the State Bar insists on applying standards applicable to a clerk's default to a motion directed to the court. Apart from this being an incredibly stupid legal construction, it also amounts to an enraged insult directed at its own court, as the Hearing Department fails to deliver the Office of the Chief Trial Counsel's presumed entitlements. "You are no more than our clerk," screams the State Bar to the Hearing Department.
Saturday, December 29, 2007
Wednesday, December 26, 2007
kanBARoo Court. 20th Installment. The State Bar VERSUS the Right to Self-Representation
Regulations confining law practice to lawyers are mystifying and irrational. The California Constitution provides for parties’ self-representation by right, yet unlike almost every other right-establishing law, the legal framework nearly abolishes delegation. Could you imagine a law that requires children to attend particular schools, yet the law does not require actual school attendance? Or a law that invalidates auto insurance purchased from any but carefully screened insurers, while imposing no requirement that a driver carry insurance? As comparison shows, prohibiting the unauthorized practice of law does not aim specifically at eliminating pretenders but at limiting freely chosen advocacy. In legal parlance, the contract with the unlicensed lawyer is void, not voidable by the purchaser, as a law narrowly drawn to protect the purchaser would require. The regulation of non-licensed builders provides an example of the narrow drawing of restrictions, intended to target misleading claims by occupational pretenders. Under Business and Professions Code section 7031, unlicensed contractors can enforce no contractual claims, but the law does not purport to make their employment impossible, as the employer can still enforce its claims. Compare with the combined effect of rules, statutes, and decisional law on unauthorized practice of law, excluding the unadmitted from court.
Granting parties their full right to self-representation, which includes the right to delegate its exercise, collaterally allows solving the problem of the oppressive and primitive State Bar rules, because 1) the Bar would no longer be charged with protecting the public, and 2) the Bar would no longer be empowered to regulate the practice of law. These measures would unburden a reformed Bar of publicly imposed simplistic demands for accountability. Litigants needing protection beyond the criminal and civil laws of breach of contract, negligence, fraud, and breach of fiduciary duty, could choose a Bar-endorsed attorney. The reforms would free the Bar to develop standards that actually reflect competent practice. Fewer are competent as lawyers than the two-thirds of candidates passing the Bar exam first try, but as long as the Bar controls the right to practice, rather than merely enhancing a Member's reputation, both law and politics will limit the test's rigor.
• The State Bar should become a purely professional organization, providing only a mark of competence and integrity, whose worth will depend on the honorability and cohesiveness of the profession.
A formal right to self-representation co-exists with a prohibition on delegating that right to anyone but Bar-admitted attorneys. This anomaly exposes the prohibition as a Legislative runaround of rights to self-representation. If litigants can come before the courts pro se, why can't they choose representation by a non-lawyer? Delegated advocacy carries advantages over self-representation, including not only the lawyer’s legal knowledge but also any advocate’s potential objectivity. The party choosing non-lawyer advocacy over self-representation may gain objective representation, which even the self-representing lawyer may lack.
Granting parties their full right to self-representation, which includes the right to delegate its exercise, collaterally allows solving the problem of the oppressive and primitive State Bar rules, because 1) the Bar would no longer be charged with protecting the public, and 2) the Bar would no longer be empowered to regulate the practice of law. These measures would unburden a reformed Bar of publicly imposed simplistic demands for accountability. Litigants needing protection beyond the criminal and civil laws of breach of contract, negligence, fraud, and breach of fiduciary duty, could choose a Bar-endorsed attorney. The reforms would free the Bar to develop standards that actually reflect competent practice. Fewer are competent as lawyers than the two-thirds of candidates passing the Bar exam first try, but as long as the Bar controls the right to practice, rather than merely enhancing a Member's reputation, both law and politics will limit the test's rigor.
The structure of the State Bar is as anomalous as its rules. The Active among so-called Bar Members vote for ceremonial Bar officers, but Members do not actually control the Bar, which is a quasi-autonomous public corporation run by a politically appointed Board of Governors. To change the rules in favor of much greater legal sophistication, the State Bar's structure must be thoroughly professionalized.
• The State Bar should become a purely professional organization, providing only a mark of competence and integrity, whose worth will depend on the honorability and cohesiveness of the profession.
Saturday, December 22, 2007
kanBARoo Court. 19th Installment. Precedent, Waiver, and Legal Strategy: The Office of the Chief Trial Counsel Goes Berserk
California State Bar Court respondents must be especially careful of the intra-case precedents they set, especially waivers, as a respondent can reserve fewer rights against waiver than a criminal or even civil defendant. A criminal defendant's protections are well known, including the exclusion of probative evidence unlawfully obtained. The criminal defendant doesn't waive evidentiary objections by proceeding. None of these rights is afforded the State Bar respondent. Even the civil defendant comes out ahead of the Bar respondent with respect to one crucial difference, which magnifies the likelihood of inadvertent waiver. Although a civil plaintiff can modify a complaint by amendment, 1) the lateness must be excused; and 2) the amendment must not change the cause of action's basic nature. Neither of these protections is available in the State Bar Court. The notice can be changed at any time, even if the reasonably available evidence would have allowed earlier pleading; and no limitation applies to fundamentally changing the charges. If respondent proceeds based on a defective notice of disciplinary charges, any inculpating information gathered under that defective document’s banner retains its full force, regardless of the notice's fate.
The strategic implication, invariably missed by the State Bar establishment defense attorneys, is that failing to assert crucial procedural rights whenever tested loses them. By corollary, I will not answer the notice of disciplinary conduct unless I have exhausted my options to challenge it. Since the Bar Court rules are vague, incomplete, unrefined, and untested, my points and authorities argue rule construction, sometimes reaching public policy. Last Friday provided another opportunity to implement this anti-waiver strategy when the prosecutrix filed a new (third) motion to enter default for failing to answer the notice of disciplinary charges, to which I will eschew filing an opposition. Any application or counterapplication to the court now risks mooting my request for an immediate stay and waiving my objections that the clerk’s office has become unreliable. Since the clerk’s office is unreliable, any filing introduces an uncertainty for me, a litigation burden that no duty requires carrying. Refusal to accelerate the proceedings artificially by prematurely answering the notice of disciplinary charges also pressures the court to rule for a stay, to avoid its own befuddlement while it investigates the clerk's office.
The factors allowing me to prevail are 1) the fundamental strength of the pleading theory, forcing the Bar Court to treat it seriously; 2) the severe misconduct of the Office of the Chief Trial Counsel; and 3) taking advantage of the prosecutrx's misconduct, by consistent refusal to waive procedural flaws. The State Bar of late has followed the opposite course. More descriptively, the Bar has gone berserk. So far from consistency, it has now filed two incompatible motions: a motion to reconsider the denial of its motion for default and, before that, a new refiling of the original motion. An improper motion for reconsideration is ordinarily sanctionable, as is remaking a denied motion. While the law grants an over-used right to plead contradictory legal theories, it does not grant the right to proceed on a procedural contradiction. It is one or the other, a motion for reconsideration or a motion proper. The Office of the Chief Trial Counsel improperly burdens the court and opposing party with contradictory procedural forms. In my 11 years of practicing law and supplying legal theories to litigators, I have never before seen the procedural presumptuousness as involved in filing for reconsideration when the underlying motion is pending.
My novel strategy frightens the State Bar. The Bar's power to move for entry of default and involuntarily enroll Bar Members as inactive goes to the heart of its unfair advantage. Without it, the State Bar’s trial counsel would have to practice law, a prospect most alarming.
To understand this blog:
The strategic implication, invariably missed by the State Bar establishment defense attorneys, is that failing to assert crucial procedural rights whenever tested loses them. By corollary, I will not answer the notice of disciplinary conduct unless I have exhausted my options to challenge it. Since the Bar Court rules are vague, incomplete, unrefined, and untested, my points and authorities argue rule construction, sometimes reaching public policy. Last Friday provided another opportunity to implement this anti-waiver strategy when the prosecutrix filed a new (third) motion to enter default for failing to answer the notice of disciplinary charges, to which I will eschew filing an opposition. Any application or counterapplication to the court now risks mooting my request for an immediate stay and waiving my objections that the clerk’s office has become unreliable. Since the clerk’s office is unreliable, any filing introduces an uncertainty for me, a litigation burden that no duty requires carrying. Refusal to accelerate the proceedings artificially by prematurely answering the notice of disciplinary charges also pressures the court to rule for a stay, to avoid its own befuddlement while it investigates the clerk's office.
The factors allowing me to prevail are 1) the fundamental strength of the pleading theory, forcing the Bar Court to treat it seriously; 2) the severe misconduct of the Office of the Chief Trial Counsel; and 3) taking advantage of the prosecutrx's misconduct, by consistent refusal to waive procedural flaws. The State Bar of late has followed the opposite course. More descriptively, the Bar has gone berserk. So far from consistency, it has now filed two incompatible motions: a motion to reconsider the denial of its motion for default and, before that, a new refiling of the original motion. An improper motion for reconsideration is ordinarily sanctionable, as is remaking a denied motion. While the law grants an over-used right to plead contradictory legal theories, it does not grant the right to proceed on a procedural contradiction. It is one or the other, a motion for reconsideration or a motion proper. The Office of the Chief Trial Counsel improperly burdens the court and opposing party with contradictory procedural forms. In my 11 years of practicing law and supplying legal theories to litigators, I have never before seen the procedural presumptuousness as involved in filing for reconsideration when the underlying motion is pending.
My novel strategy frightens the State Bar. The Bar's power to move for entry of default and involuntarily enroll Bar Members as inactive goes to the heart of its unfair advantage. Without it, the State Bar’s trial counsel would have to practice law, a prospect most alarming.
To understand this blog:
- Read Installments 1-3, 5, 7, and 14 first, in that order; then follow your interests; or
- Follow your interests, and make liberal use of hyperlinks.
Wednesday, December 19, 2007
kanBARoo Court. 18C Installment. My currently pending motion.
This is my currently pending motion to reconsider the order to show cause, issued when the Hearing Department denied the State Bar's Motion for Entry of Default. My original opposition, appended to this document, is here.
__________________________________________
Stephen R. Diamond (State Bar No: 183617)
Legal Research and Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866
In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
Case Nos. 05-0-04605 et al.
Motion to Reconsider Order to Show Cause; Request for Immediate Stay; Respondent’s Supporting Declaration; Ex. ‘A.’
(Date Order Filed: December 12, 2007
(Rules of Procedure, rule 224)
Grounds
Among the well-known grounds for a motion to reconsider is an offer of new facts, where failure to have previously introduced them is excusable. The court could not consider the facts contained in respondent's opposition, because they were officially unfiled when the court ruled. The facts below, corroborated in respondent's declaration, will show that respondent made a reasonable effort to file the opposition on time. The failure to bring the new facts to the court’s attention was unintentional and improbable, even when the court considers the mail-delivery mechanics alone and disregards DPT Lawrence’s instrumental role.
Respondent attaches his opposition to the State Bar’s motion for entry for default, officially unfiled when the court denied the State Bar’s motion but imposed other conditions. The opposition was mailed on December 8, 2007, was picked up by the post office on that same date, was due for filing on December 11, 2007, and was not filed by that date.
The fraudulent conduct of opposing counsel, documented in the attached opposition, makes probable that DTC Lawrence and at least one clerk deflected the opposition, declining to confine their intermeddling to destroying copies and substituting copies of the proof of service, as with the attached opposition documents. This documented recent intermeddling makes her likely to have repeated the unlawful conduct. The court should not allow this wrongdoer the benefit of her wrongdoing.
1. Respondent used reasonable care to effect timely mailing.
In every previous instance, the post office has delivered respondent’s mail to the State Bar the day immediately following pickup. Mailing the motion on Saturday, it would ordinarily arrive the following Monday, December 10, a day before the deadline on a very short-notice opposition. Leaving the matter at that, respondent should reasonably be allowed to have the court consider the evidence contained in the declarations.
2. DPC Lawrence’s previous conduct suggests she again intermeddled with court files to abort the court’s reception of respondent’s opposition to the motion for entry of default.
When the court takes into account the contents of those declarations, it should conclude that the risk that DPC Lawrence once again intermeddled with court documents is too great for respondent to be required to bear. The declarations create this risk in two ways. The obvious one is that Ms. Lawrence, having committed gross misconduct once, will do so again. The more psychologically astute perception of the risks to due process would emphasize that Ms. Lawrence has motive to prevent the dissemination of the opposition. One must assume that its contents will destroy her career.
Argument
1. The State Bar should not gain unfair advantage from Ms. Lawrence’s unlawful thwarting of respondent’s petition for review, a thwarting that obviously violated respondent’s due process rights.
If the court reconsiders the motion and receives the accompanying oppositions into evidence, no grounds are present for the order to show cause, because DTC Lawrence thwarted respondent's efforts. Without the intermeddling that is the subject of the attached opposition, respondent’s petition for review would be before the Review Department, providing him with a substantial opportunity to obtain a stay. The court should not order respondent to show cause for failing to attend a deposition that the court ratified only because Ms. Lawrence’s foul play deprived it of the facts.
The effect of a pending application for a stay depends on circumstances that sometimes can only be evaluated retroactively, given the Hearing Department’s short time limits. Had it granted the stay, the court would likely not expect respondent to attend a deposition that would moot his petition for review. Whether the stay pertains to the period of time the request was pending before the Hearing Department would inevitably be decided after the fact, on determination of the Hearing Department or the Review Department. Ms. Lawrence’s foul play deprived respondent of this opportunity to have the case stayed and to have the Hearing Department or Review Department ratify his position favoring a stay of deposition proceedings. To let the State Bar capitalize on DTC Lawrence’s foul play would only compound the due process violation she inflicted.
2. The court should stay this action immediately in accordance with the Prayer of Respondent’s Opposition to the Motion to Enter Default.
The case cannot be allowed to continue without judicial intervention to protect respondent’s due process rights and to discipline errant counsel.
Dated:______
By:
Legal Research & Writing Service
Stephen R. Diamond
Respondent’s Declaration in Support of Motion to Reconsider Order to Show Cause and Request for Immediate Stay
I, Stephen R. Diamond, declare
1. I am the respondent in this action and a Member of the California State Bar.
2. I caused an opposition to the State Bar’s motion for entry of default to be mailed for pickup on December 8, 2007 for pickup that same day.
3. A true and correct copy of that opposition is attached as Exhibit ‘A’ to this declaration.
4. Only a single day is normally required for mailing from my residence to the State Bar.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Joshua Tree, San Bernardino County, California on December 12, 2007.
_________________________________________________ Stephen R. Diamond, declarant
END OF DOCUMENT
__________________________________________
Stephen R. Diamond (State Bar No: 183617)
Legal Research and Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866
In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
Case Nos. 05-0-04605 et al.
Motion to Reconsider Order to Show Cause; Request for Immediate Stay; Respondent’s Supporting Declaration; Ex. ‘A.’
(Date Order Filed: December 12, 2007
(Rules of Procedure, rule 224)
Grounds
Among the well-known grounds for a motion to reconsider is an offer of new facts, where failure to have previously introduced them is excusable. The court could not consider the facts contained in respondent's opposition, because they were officially unfiled when the court ruled. The facts below, corroborated in respondent's declaration, will show that respondent made a reasonable effort to file the opposition on time. The failure to bring the new facts to the court’s attention was unintentional and improbable, even when the court considers the mail-delivery mechanics alone and disregards DPT Lawrence’s instrumental role.
Respondent attaches his opposition to the State Bar’s motion for entry for default, officially unfiled when the court denied the State Bar’s motion but imposed other conditions. The opposition was mailed on December 8, 2007, was picked up by the post office on that same date, was due for filing on December 11, 2007, and was not filed by that date.
The fraudulent conduct of opposing counsel, documented in the attached opposition, makes probable that DTC Lawrence and at least one clerk deflected the opposition, declining to confine their intermeddling to destroying copies and substituting copies of the proof of service, as with the attached opposition documents. This documented recent intermeddling makes her likely to have repeated the unlawful conduct. The court should not allow this wrongdoer the benefit of her wrongdoing.
1. Respondent used reasonable care to effect timely mailing.
In every previous instance, the post office has delivered respondent’s mail to the State Bar the day immediately following pickup. Mailing the motion on Saturday, it would ordinarily arrive the following Monday, December 10, a day before the deadline on a very short-notice opposition. Leaving the matter at that, respondent should reasonably be allowed to have the court consider the evidence contained in the declarations.
2. DPC Lawrence’s previous conduct suggests she again intermeddled with court files to abort the court’s reception of respondent’s opposition to the motion for entry of default.
When the court takes into account the contents of those declarations, it should conclude that the risk that DPC Lawrence once again intermeddled with court documents is too great for respondent to be required to bear. The declarations create this risk in two ways. The obvious one is that Ms. Lawrence, having committed gross misconduct once, will do so again. The more psychologically astute perception of the risks to due process would emphasize that Ms. Lawrence has motive to prevent the dissemination of the opposition. One must assume that its contents will destroy her career.
Argument
1. The State Bar should not gain unfair advantage from Ms. Lawrence’s unlawful thwarting of respondent’s petition for review, a thwarting that obviously violated respondent’s due process rights.
If the court reconsiders the motion and receives the accompanying oppositions into evidence, no grounds are present for the order to show cause, because DTC Lawrence thwarted respondent's efforts. Without the intermeddling that is the subject of the attached opposition, respondent’s petition for review would be before the Review Department, providing him with a substantial opportunity to obtain a stay. The court should not order respondent to show cause for failing to attend a deposition that the court ratified only because Ms. Lawrence’s foul play deprived it of the facts.
The effect of a pending application for a stay depends on circumstances that sometimes can only be evaluated retroactively, given the Hearing Department’s short time limits. Had it granted the stay, the court would likely not expect respondent to attend a deposition that would moot his petition for review. Whether the stay pertains to the period of time the request was pending before the Hearing Department would inevitably be decided after the fact, on determination of the Hearing Department or the Review Department. Ms. Lawrence’s foul play deprived respondent of this opportunity to have the case stayed and to have the Hearing Department or Review Department ratify his position favoring a stay of deposition proceedings. To let the State Bar capitalize on DTC Lawrence’s foul play would only compound the due process violation she inflicted.
2. The court should stay this action immediately in accordance with the Prayer of Respondent’s Opposition to the Motion to Enter Default.
The case cannot be allowed to continue without judicial intervention to protect respondent’s due process rights and to discipline errant counsel.
Dated:______
By:
Legal Research & Writing Service
Stephen R. Diamond
Respondent’s Declaration in Support of Motion to Reconsider Order to Show Cause and Request for Immediate Stay
I, Stephen R. Diamond, declare
1. I am the respondent in this action and a Member of the California State Bar.
2. I caused an opposition to the State Bar’s motion for entry of default to be mailed for pickup on December 8, 2007 for pickup that same day.
3. A true and correct copy of that opposition is attached as Exhibit ‘A’ to this declaration.
4. Only a single day is normally required for mailing from my residence to the State Bar.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Joshua Tree, San Bernardino County, California on December 12, 2007.
_________________________________________________ Stephen R. Diamond, declarant
END OF DOCUMENT
Tuesday, December 18, 2007
kanBARoo Court. 18B Installment. The prosecutrix fails to deny specific evidence of her fraud.
The "State Bar's Reply to Respondent's Opposition to Motion for Entry of Default," served on December 12 by Deputy Trial Counsel Lawrence, has a couple of problems. First, the document is unfileable, as the State Bar Court does not have reply papers, and the prosecutrix, sanctionably, never moved the court to permit additional filing. Second, the last day for filing was December 11; the court denied Lawrence's motion on the same day she filed or tried to file her reply.
This reply warrants my taking a few minutes to type all of it, which you will find below, with my good faith effort to preserve even Lawrence's formatting. You may want to compare the prosecutrix's document to my opposition to the motion for entry of default, to which it replies, and take away an otherwise unavailable sense of this case. Her reply begins in a logical circle, continues to the relitigation of issues already adjudicated, and ends in a deeply inculpating declaration. She admits the evidence of her fraud where she is silent by failing to state that she can produce the unsigned proof of service. The prosecutrix's superiors apparently ordered her to write this reply, belated and ill-advised.
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STATE BAR'S REPLY TO RESPONDENT"S OPPOSITION TO MOTION FOR ENTRY OF DEFAULT
COMES now the State Bar of California ("State Bar'), by and through Deputy Trial Counsel Melanie J. Lawrence, in Reply to Respondent's Opposition to the State Bar's Motion for Entry of Default for respondent's failure to file a Response to the Notice of Disciplinary Charges as required by Rule 103 of the Rules of Procedure of the State Bar Court. This Reply is based upon Rules 103 and 200 of the rule of Procedure of the State Bar court, Business and Professions Code section 6088, the attached declaration of Melanie J. lawrenceand all pleadings and documents on file with the Court in this matter.Respectfully submitted,THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL
MELANIE J. LAWRENCEDeputy Trial Counsel2/12/07
MEMORANDUM OF POINTS AND AUTHORITIES
Unless the time is extended by Court order, or by written stipulation of the parties, a written response to the notice of disciplinary charges shall be filed and served by the respondent within twenty days after service of the notice of disciplinary charges. (Rule 103(a) of the Rules of Procedure of the State Bar Court.) A "response" is the answer referred to in Business and Professions Code section 6088. (Rule 2, 3.00.) The board may provide by rule that alleged facts in a proceeding are admitted upon failure to answer. (B&PC section 6088 [emphasis added].) Factual allegations in the NDC shall be deemed admitted upon entry of default. (Rule 200(d)(1).)
Respondent has failed to file an answer to the Notice of Disciplinary Charges
Respondent admits he has not filed an answer to the Notice of Disciplinary Charges ("NDC"). Also, a response to the NDC requires either a specific admission or specific denial of the allegations set forth in the NDC. (Rule 103(c)(2)(i).) So, the "logical next pleadings" Respondent has filed throughout this process have not been the answer contemplated and required by Rule 103 and Business and Professions Code section 6088. Rather, he has filed an untimely motion to dismiss the NDC and an untimely motion to reconsider and attempted to file a petition for review. This Court order Respondent on November 9, 2007, to file a responsive pleading, pursuant to Rule 103, within twenty days, and on December 4, 2007, denied Respondent's Request for an Immediate Stay of these proceedings. But, he still did not file a response, as required by Rule 103. By rule, and by this Court's order, Respondent is required to file an answer to the NDC in which he admits or denies the allegations. To date, he has not. His default must be entered. (Rule 200(c).)
Respondent's accusation of misconduct by the Deputy Trial Counsel and the Corut Clerk is unfounded, untruthful and outrageous.
On December 3, 2007, Respondent's petition for review was rejected for filing because it was not accompanied by a proof of service that bears an original signature and did not include four exact duplicates with the original. By way of explanation, Respondent accuses the Deputy Trial Counsel and the court clerk of conspiring to prevent him from filing a petition in the Review Department and destroying documents. In fact, the State Bar did receive a copy of Respondent's petition, with an unsigned proof of service. But, the Deputy Trial Counsel has not had any contact with the Court, and most certainly, has not conspired and schemed with anyone, as Respondent has accused, to prevent his filing of the petition.
Conclusion
Respondent's baseless accusations, unsupported by any credible evidence, demonstrate his contempt for these proceedings. The Court cannot allow Respondent to continue to flagrantly defy the rules and this Court's orders. He has failed to answer the NDC. His default must therefore, be entered.
I MELANIE J. LAWRENCE, declare:
All statement made herein are based on my personal knowledge, except for those stated to be under information and belief.
MELANIE J. LAWRENCE
Deputy Trial Counsel
This reply warrants my taking a few minutes to type all of it, which you will find below, with my good faith effort to preserve even Lawrence's formatting. You may want to compare the prosecutrix's document to my opposition to the motion for entry of default, to which it replies, and take away an otherwise unavailable sense of this case. Her reply begins in a logical circle, continues to the relitigation of issues already adjudicated, and ends in a deeply inculpating declaration. She admits the evidence of her fraud where she is silent by failing to state that she can produce the unsigned proof of service. The prosecutrix's superiors apparently ordered her to write this reply, belated and ill-advised.
------------------------------------------
STATE BAR'S REPLY TO RESPONDENT"S OPPOSITION TO MOTION FOR ENTRY OF DEFAULT
COMES now the State Bar of California ("State Bar'), by and through Deputy Trial Counsel Melanie J. Lawrence, in Reply to Respondent's Opposition to the State Bar's Motion for Entry of Default for respondent's failure to file a Response to the Notice of Disciplinary Charges as required by Rule 103 of the Rules of Procedure of the State Bar Court. This Reply is based upon Rules 103 and 200 of the rule of Procedure of the State Bar court, Business and Professions Code section 6088, the attached declaration of Melanie J. lawrenceand all pleadings and documents on file with the Court in this matter.Respectfully submitted,THE STATE BAR OF CALIFORNIA OFFICE OF THE CHIEF TRIAL COUNSEL
MELANIE J. LAWRENCEDeputy Trial Counsel2/12/07
MEMORANDUM OF POINTS AND AUTHORITIES
Unless the time is extended by Court order, or by written stipulation of the parties, a written response to the notice of disciplinary charges shall be filed and served by the respondent within twenty days after service of the notice of disciplinary charges. (Rule 103(a) of the Rules of Procedure of the State Bar Court.) A "response" is the answer referred to in Business and Professions Code section 6088. (Rule 2, 3.00.) The board may provide by rule that alleged facts in a proceeding are admitted upon failure to answer. (B&PC section 6088 [emphasis added].) Factual allegations in the NDC shall be deemed admitted upon entry of default. (Rule 200(d)(1).)
Respondent has failed to file an answer to the Notice of Disciplinary Charges
Respondent admits he has not filed an answer to the Notice of Disciplinary Charges ("NDC"). Also, a response to the NDC requires either a specific admission or specific denial of the allegations set forth in the NDC. (Rule 103(c)(2)(i).) So, the "logical next pleadings" Respondent has filed throughout this process have not been the answer contemplated and required by Rule 103 and Business and Professions Code section 6088. Rather, he has filed an untimely motion to dismiss the NDC and an untimely motion to reconsider and attempted to file a petition for review. This Court order Respondent on November 9, 2007, to file a responsive pleading, pursuant to Rule 103, within twenty days, and on December 4, 2007, denied Respondent's Request for an Immediate Stay of these proceedings. But, he still did not file a response, as required by Rule 103. By rule, and by this Court's order, Respondent is required to file an answer to the NDC in which he admits or denies the allegations. To date, he has not. His default must be entered. (Rule 200(c).)
Respondent's accusation of misconduct by the Deputy Trial Counsel and the Corut Clerk is unfounded, untruthful and outrageous.
On December 3, 2007, Respondent's petition for review was rejected for filing because it was not accompanied by a proof of service that bears an original signature and did not include four exact duplicates with the original. By way of explanation, Respondent accuses the Deputy Trial Counsel and the court clerk of conspiring to prevent him from filing a petition in the Review Department and destroying documents. In fact, the State Bar did receive a copy of Respondent's petition, with an unsigned proof of service. But, the Deputy Trial Counsel has not had any contact with the Court, and most certainly, has not conspired and schemed with anyone, as Respondent has accused, to prevent his filing of the petition.
Conclusion
Respondent's baseless accusations, unsupported by any credible evidence, demonstrate his contempt for these proceedings. The Court cannot allow Respondent to continue to flagrantly defy the rules and this Court's orders. He has failed to answer the NDC. His default must therefore, be entered.
I MELANIE J. LAWRENCE, declare:
All statement made herein are based on my personal knowledge, except for those stated to be under information and belief.
- I am an attorney admitted to all courts of the State of California.
- I have been employed as a Deputy Trial Counsel in the Office of the Chief Trial Counsel since December 2005.
- This matter was assigned to me on or about July 9, 2007.
- The State Bar did receive a copy of Respondent's petition, with an unsigned proof of service.
- I have not had any contact with the court clerk regarding Respondent's petition, have not seen the copy of the petition that was filed with the Court, and most certainly, have not conspired and schemed with anyone, as Respondent has accused, to prevent his filing of the petition.
MELANIE J. LAWRENCE
Deputy Trial Counsel
kanBARoo Court. 18A Installment. The State Bar's Pre-Trial Statement & My Letter to the Court
A bonus accruing from the Hearing Department's abruptly vacating all the trial dates is that I received a premature copy of the State Bar's Pre-Trial Statement. Here is the State Bar's official view the charges, incorporating, as expected, all the ambiguities of the notice of disciplinary charges and expressing its oblique theory of strict ethical liability.
_______________
__________________
An irony is that the prosecutrix's recent attempt at fraud on the court was assisted by clerks, for whose conduct the Presiding Judge has ultimate supervisory responsibility. My cover letter to Judge Honn, conveying the news of the prosecutrix's deceit, reflects this irony:
__________________
_______________
In this matter, Respondent is alleged to have formed a partnership with a non-attorney to form and operate a personal injury practice. After doing so, the non-attorney, Jae Bum Kim, and a number of employees he hired, engaged in the unauthorized practice of law, by, among other things, signing up clients and negotiating settlements with little or no supervision from Respondent.
Respondent is alleged to have created the environment in the office in which the staff engaged in the unauthorized practice of law. Then, he is alleged to have, among other things, failed to notify the clients of the receipt of settlement funds, failed to maintain client funds in a CTA, failed to respond to the clients, caused or permitted settlement checks to be endorsed and negotiated without the client's knowledge or consent, failed to pay medical liens, and failed to release client files.
__________________
An irony is that the prosecutrix's recent attempt at fraud on the court was assisted by clerks, for whose conduct the Presiding Judge has ultimate supervisory responsibility. My cover letter to Judge Honn, conveying the news of the prosecutrix's deceit, reflects this irony:
__________________
Attn: Judge Honn
PERSONAL AND CONFIDENTIAL
Dear Judge Honn:
My case began with a conspiracy of clerks, who among numerous other deceits, filtered from my mail any inculpating correspondence . It appears that you too are victim of a conspiracy involving clerks.
I am communicating ex parte out of dire necessity. DTC Lawrence, colluding with at least one court clerk, has inter-meddled with the court records to cause the rejection or other deflection of filings. The documents enclosed have been mailed for filing and served in proper fashion. If they suffer the fate of my opposition to motion to enter default (December 12, 2007 order), I know of no other way than direct communication to bring the problem to the court's attention.
Yours truly,
Stephen R. Diamond
kanBARoo Court. 18th Installment. The prosecutrix creates an opportunity.
To understand the opportunity the prosecutrix's crimes create, you need to understand something of how the Office of the Chief Trial Counsel is related to the courts, starting with how the courts are related to each other. In adjudicating disciplinary cases, the Hearing Department of the
While the relations among the layers of judicial hierarchy are unexceptional, the relationship between the Hearing Department and the Office of the Chief Trial Counsel is shocking in practice and undefined in law. In practice, the Hearing Department is just as deferential to the Office of the Chief Trial Counsel as any appellate court is required to be toward the court below. On any question of fact, the Hearing Department will believe the evidence presented by the deputy trial counsel, provided the Bar has any substantial evidence at all. The Hearing Department, itself part of the State Bar, decides any issue requiring weighing the evidence in favor of the State Bar. In law, the U.S. Supreme Court has long held that the right to practice law can only be taken away by due process, and California accepts attorney discipline as subject to due process. But as to the requirements for neutrality of the State Bar Court from the Office of the Chief Trial Counsel, the law contains no specifics. The State Bar, with its absence of rules dictating court neutrality, contrasts with California's administrative courts, where the judge and the prosecutor must satisfy minimum requirements of arms-length distance, construed to exclude ex parte communication between them.
To best understand this blog,
- Read Installments 1-3, 5, 7, and 14 first, in that order; then
- Follow your interests; or
- Read the current installment.
Saturday, December 15, 2007
kanBARoo Court. 17C Installment. Opposition to motion to compel deposition.
This document is my opposition to the State Bar's motion to compel my deposition. Taking my deposition would have served to moot my motion to dismiss, because the Bar would then have already inflicted the harms of proceeding on a flawed pleading. You may recall, the court granted the State Bar's motion while denying its substance, by ruling that discovery could wait until the case was at issue.
If you take away one insight from this, it should relate to the benefits of taking a principled position based on law from the case's inception and acting in rigorous consistency with that position, even if that involved freezing the action at the pleading stage.
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Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
:
Case Nos. 05-0-04605 et al.
Opposition to Motion to Compel Respondent’s Deposition
Argument
1. Properly interpreted, State Bar Court Rule 182(b) delays discovery until resolution of a challenge to the Notice of Disciplinary Charges’ legal sufficiency.
A. The ambiguous rule must be interpreted in relation to its underlying policy.
State Bar Court Rules of Procedure, rule 182(b) provides that “No party may serve any formal discovery request until twenty days after the date the responsive pleading is originally due.” When the language of a rule is clear and unambiguous, the rule should be interpreted as meaning exactly what it says. But where the rule is either ambiguous on its face or where a literal interpretation fails to make sense in terms of the policies it attempts to implement, the literal interpretation must give way to an interpretation that takes the policies it seeks to implement into account. (See Seaman v. Superior Court (1987) 193 Cal.App.3d 1279, 1287.)
The rule in question is ambiguous on its face, and the most literal interpretation would defeat the evident policies that underlie it. The rule is ambiguous on its face because the rule does not clearly state what is meant by the date when the reply first falls due, because an answer is not the only response available. When as in this case, respondent serves and files a Motion to Dismiss the Notice of Disciplinary Charges, that pleading extends the time for filing an answer. This could be termed extending the original date or as substituting a new date for the original date. Hence, the ambiguity about the date originally due. This manner of extending the time for an answer by timely filing and serving a Motion to Dismiss contrasts with setting a genuinely new date, when respondent fails to timely respond to the NDC, and a default is entered. If the court grants respondent relief from the default, it sets another date, a date that can unambiguously be called a different date, not an extension of the first date.
Of these two senses of original date, only the second definition comports with a tenable rationale for the rule. Only where the respondent has failed to meet the original deadline does initiating discovery, despite the case not being at issue, serve purpose and policy. The alternative interpretation, that filing a responsive pleading other than an answer initiates discovery when the responsive pleading was due, penalizes filing a Motion to Dismiss. The rule cannot intend such penalization, because allowing a case to go forward, when a disciplinable offense has not been sufficiently charged, serves no one's interest.
B. The underlying policy of rule 182(b) is protection of Bar Members from State Bar fishing expeditions.
Under the Rules of Civil Procedure, plaintiff's discovery can proceed within two weeks of filing the complaint, even when the complaint is subject to demurrer. Understanding the reason for deviating from the procedure for civil discovery elucidates the policy that established rule 182(b) as the alternative to Code of Civil Procedure section 2025, subdivision (b) [“20 days after the service of the summons on, or the appearance of, any defendant.”] Limitations on discovery protect the respondent, and the rule's promulgators evidently saw that a Member of the State Bar requires more protection than a civil defendant, one reason among others being that the rights involved are more basic. (See In re Ruffalo (1968) 390 U.S. 544, 551 [Protection must be commensurate with the quasi-criminal nature of attorney discipline proceedings].) Where a respondent standing before the State Bar Court defaults, policy requires that he forfeit rights he would otherwise hold, even where the court grants relief from default. Normally the Member in such circumstances is enrolled as an Inactive Member. The intent to restrict the rights of the Bar respondent who misses the date for filing a responsive pleading thus comports with the other policies applied in the same circumstances.
A firm commitment to the ultimate first date for filing the Answer to the NDC prevents either side from manipulating the system and inflicting injustice on the other. Respondent cannot delay the proceeding by failing to file a timely responsive pleading. The Office of the Chief Trial Counsel cannot conduct a fishing expedition in discovery, unbounded by a legally sufficient notice of disciplinary charges.
C. To serve a protective function, partly substituting for summary procedures, the Hearing Department must resolve motions to dismiss the NDC before allowing discovery.
This is an important right of respondents secured by the State Bar Court's Rule of Procedure, rule 182(b). It is the primary policy expressed by that rule. The right to restrict discovery to questions related to an NDC that sufficiently states a disciplinable charge protects respondent from undue invasiveness. Since no summary procedure exists in a State Bar case, the respondent can avail himself of protection against indiscriminate invasiveness only through the Motion to Dismiss. It serves a quasi-summary judgment testing function, much in the manner served by pleading with particularity in civil fraud cases. [Small v. Fritz Companies (2003) 30 Cal.4th 169, 184 [In fraud causes, the requirement to plead with particularity serves the purpose of separating meritorious from non-meritorious cases in advance of trial.].)
2. Even if the motion’s likelihood of success is a proper consideration, the State Bar has failed to demonstrate a low likelihood of success of respondent’s motion for reconsideration.
A. What Ms. Lawrence or the Office of the Chief Trial Counsel “believes” about the likelihood of respondent prevailing on the merits of the motion to reconsider has no relevance.
Anticipating respondent's argument concerning the appropriateness of waiting for a ruling on respondent's motion to reconsider respondent's motion to dismiss the NDC, the Office of the Chief Trial Counsel argues based on its "belief" that the Hearing Department will deny the motion. Arguing based on belief neatly bypasses the actually relevant question, the likelihood of prevailing, which the State Bar must address objectively. Two kinds of information are available to consider the likelihood of outcome: the actual response or lack of response from the Hearing Department to date and the strength of arguments proffered in the motion to reconsider, when compared to the opposition to that motion.
B. The procedural posture of the motion to reconsider does not support the contended low likelihood of respondent’s prevailing.
As regards the procedural posture of the motion to reconsider, Deputy Trial Counsel Lawrence filed an opposition on October 23, 2007. Ten days have since passed. While respondent cannot fairly hold Ms. Lawrence accountable as of October 23 for what she knows on November 2, the fact that ten days have passed without a ruling tends to show that the decision on the motion was not an easy one, and Ms. Lawrence's cavalier belief that the court would deny the motion was unjustified. The length of delay shows that Ms. Lawrence belief that denial was a foregone conclusion does not find support in the judgment roll.
C. The State Bar failed to proffer persuasive arguments in its Opposition to the Motion to Reconsider to support a low likelihood of respondent’s prevailing.
Turning to the arguments advanced, respondent submitted a seven-page brief of tightly constructed argument, to which the State Bar replied with approximately two pages of opposing argument. Unless respondent's arguments were notoriously weak, this observation alone rebuts a conclusion that the motion’s failure is a foregone conclusion. Clearly Ms. Lawrence failed to answer many of the arguments, and those she did answer she answered in a notably superficial manner.
(1) The argument that the motion was untimely is frivolous in light of the court having granted respondent permission to file it after hearing Ms. Lawrence’s arguments at the telephonic status conference.
Ms. Lawrence first argued that the motion to reconsider was untimely. This is a plainly frivolous argument, because Ms. Lawrence raised the alleged untimeliness issue at the telephonic status conference where the court ruled against the State Bar’s motion to dismiss. Were it a foregone conclusion that that the motion was untimely, the court would not have permitted its filing, as the court did consider her argument. Ms. Lawrence provides no authority for her claim that the 15-day limit is mandatory as opposed to advisory. As policy, making the date mandatory would make little sense, because no one benefits from going forward blind to error of law. The Office of the Chief Trial Counsel behaves shamefully when it prefers disposing of a motion that goes to issues of law based on the motion's alleged untimeliness, after the court agreed to allow the filing. The court’s permission precludes any argument to judicial economy that might counter-balance the loss of judicial accuracy. Would Ms. Lawrence have the court ignore the motion, after having taken the time to read it, even with a legally well-taken argument to error of law? And if not, what was the point of making this argument--as her first argument, no less--instead of relying on the argument that the motion lacked merit? Counsel emphasize a procedural argument standing in this posture only when completely lacking confidence in the rebuttal’s merit. One must conclude that Ms. Lawrence’s lack of belief in a substantial probability of respondent prevailing on the motion to reconsider lacked good faith.
(2) Ms. Lawrence fails to offer a serious argument as to the meaning and import of the State Bar cases she cites while misconstruing those cases.
Proceeding to the merit of the rebuttal itself, Ms. Lawrence cites two cases as authority that the judicial error respondent noted was correct application of law. These are Review Department cases, which offer scant basis for challenging the line of California Supreme Court cases respondent cited in his motion for reconsideration. She does not even bother to discuss these Supreme Court cases, and she takes the holding out of context. Matter of McCarthy (2002) 4 Cal. State Bar Ct. Rptr. 364, which Ms. Lawrence does not bother even to quote, states that whether the facts are properly actionable in that State Bar matter is the only issue at hand--the only issue, as opposed to determining whether the facts alleged are true. The case does not intend to say that this is the only issue that ever merits consideration when the State Bar Court rules on a motion to dismiss. That would be contrary not only to the cited Supreme Court cases but to the express meaning of Rules of Procedure, rule 101(b), which states the requirements for legally sufficient charging allegations.
(3) Ms. Lawrence fails to offer any support for her contention that an argument offered for reconsideration in a State Bar case must repeat an argument already made in the underlying motion.
Finally, Ms. Lawrence argues that respondent had not made his main argument in the Motion to Dismiss the NDC. With cavalierness that has become emblematic, the Deputy Trial Counsel first ignores respondents footnote on page 4 of respondent’s Motion to Reconsider, where respondent points out the actual equivalence of this argument and the argument made in the Motion to Dismiss. Secondly, she cites no authority for the strange proposition that only arguments already proffered can be made in a motion to reconsider. Ms. Lawrence would like to have it both ways. The court will deny the motion to reconsider, because respondent offers nothing new. If not that, the court will necessarily deny the motion to reconsider, because that motion fails to repeat arguments already made.
Conclusion
Respondent treats some additional matters the State Bar's motion raises in his attached declaration. Ms. Lawrence, unable to sustain the soundness of her Notice of Disciplinary Charges seeks unlawfully to conduct discovery without constraint in the hope she will have something to put it place of the current NDC, if the State Bar Court finds it insufficient as a matter of law.
Dated: _________________________
By:
Legal Research & Writing Service
Stephen R. Diamond
Respondent’s Declaration in Support of Opposition to Motion to Compel His Deposition
I, Stephen R. Diamond, declare,
1. I am an attorney admitted to the practice of law before all the courts of the State of California and respondent in this matter. I declare to all statements on personal knowledge, and if called upon, I could and would testify competently to them.
2. Respondent requested that Ms. Lawrence continue the deposition for only sufficient time to allow respondent to file a motion for a protective order. A correct copy of this request is attached as Exhibit ‘A.’
3. Ms. Lawrence denied this request. A correct copy of her denial is attached as Exhibit ‘B.’
4. Respondent did not file the motion for a protective order because of calendaring error.
5. Respondent has previously argued and is prepared to argue further that any delay resulted from actions of the State Bar, not from actions of respondent.
6. Respondent motions and opposition represent a good faith effort to defend himself against an insufficient NDC and against improper tactics employed by the Office of the Chief Trial Counsel.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on ________________________________________ in Joshua Tree, San Bernardino County, California.
_________________________________Stephen R. DiamondDeclarant
If you take away one insight from this, it should relate to the benefits of taking a principled position based on law from the case's inception and acting in rigorous consistency with that position, even if that involved freezing the action at the pleading stage.
---------------------
Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
:
Case Nos. 05-0-04605 et al.
Opposition to Motion to Compel Respondent’s Deposition
Argument
1. Properly interpreted, State Bar Court Rule 182(b) delays discovery until resolution of a challenge to the Notice of Disciplinary Charges’ legal sufficiency.
A. The ambiguous rule must be interpreted in relation to its underlying policy.
State Bar Court Rules of Procedure, rule 182(b) provides that “No party may serve any formal discovery request until twenty days after the date the responsive pleading is originally due.” When the language of a rule is clear and unambiguous, the rule should be interpreted as meaning exactly what it says. But where the rule is either ambiguous on its face or where a literal interpretation fails to make sense in terms of the policies it attempts to implement, the literal interpretation must give way to an interpretation that takes the policies it seeks to implement into account. (See Seaman v. Superior Court (1987) 193 Cal.App.3d 1279, 1287.)
The rule in question is ambiguous on its face, and the most literal interpretation would defeat the evident policies that underlie it. The rule is ambiguous on its face because the rule does not clearly state what is meant by the date when the reply first falls due, because an answer is not the only response available. When as in this case, respondent serves and files a Motion to Dismiss the Notice of Disciplinary Charges, that pleading extends the time for filing an answer. This could be termed extending the original date or as substituting a new date for the original date. Hence, the ambiguity about the date originally due. This manner of extending the time for an answer by timely filing and serving a Motion to Dismiss contrasts with setting a genuinely new date, when respondent fails to timely respond to the NDC, and a default is entered. If the court grants respondent relief from the default, it sets another date, a date that can unambiguously be called a different date, not an extension of the first date.
Of these two senses of original date, only the second definition comports with a tenable rationale for the rule. Only where the respondent has failed to meet the original deadline does initiating discovery, despite the case not being at issue, serve purpose and policy. The alternative interpretation, that filing a responsive pleading other than an answer initiates discovery when the responsive pleading was due, penalizes filing a Motion to Dismiss. The rule cannot intend such penalization, because allowing a case to go forward, when a disciplinable offense has not been sufficiently charged, serves no one's interest.
B. The underlying policy of rule 182(b) is protection of Bar Members from State Bar fishing expeditions.
Under the Rules of Civil Procedure, plaintiff's discovery can proceed within two weeks of filing the complaint, even when the complaint is subject to demurrer. Understanding the reason for deviating from the procedure for civil discovery elucidates the policy that established rule 182(b) as the alternative to Code of Civil Procedure section 2025, subdivision (b) [“20 days after the service of the summons on, or the appearance of, any defendant.”] Limitations on discovery protect the respondent, and the rule's promulgators evidently saw that a Member of the State Bar requires more protection than a civil defendant, one reason among others being that the rights involved are more basic. (See In re Ruffalo (1968) 390 U.S. 544, 551 [Protection must be commensurate with the quasi-criminal nature of attorney discipline proceedings].) Where a respondent standing before the State Bar Court defaults, policy requires that he forfeit rights he would otherwise hold, even where the court grants relief from default. Normally the Member in such circumstances is enrolled as an Inactive Member. The intent to restrict the rights of the Bar respondent who misses the date for filing a responsive pleading thus comports with the other policies applied in the same circumstances.
A firm commitment to the ultimate first date for filing the Answer to the NDC prevents either side from manipulating the system and inflicting injustice on the other. Respondent cannot delay the proceeding by failing to file a timely responsive pleading. The Office of the Chief Trial Counsel cannot conduct a fishing expedition in discovery, unbounded by a legally sufficient notice of disciplinary charges.
C. To serve a protective function, partly substituting for summary procedures, the Hearing Department must resolve motions to dismiss the NDC before allowing discovery.
This is an important right of respondents secured by the State Bar Court's Rule of Procedure, rule 182(b). It is the primary policy expressed by that rule. The right to restrict discovery to questions related to an NDC that sufficiently states a disciplinable charge protects respondent from undue invasiveness. Since no summary procedure exists in a State Bar case, the respondent can avail himself of protection against indiscriminate invasiveness only through the Motion to Dismiss. It serves a quasi-summary judgment testing function, much in the manner served by pleading with particularity in civil fraud cases. [Small v. Fritz Companies (2003) 30 Cal.4th 169, 184 [In fraud causes, the requirement to plead with particularity serves the purpose of separating meritorious from non-meritorious cases in advance of trial.].)
2. Even if the motion’s likelihood of success is a proper consideration, the State Bar has failed to demonstrate a low likelihood of success of respondent’s motion for reconsideration.
A. What Ms. Lawrence or the Office of the Chief Trial Counsel “believes” about the likelihood of respondent prevailing on the merits of the motion to reconsider has no relevance.
Anticipating respondent's argument concerning the appropriateness of waiting for a ruling on respondent's motion to reconsider respondent's motion to dismiss the NDC, the Office of the Chief Trial Counsel argues based on its "belief" that the Hearing Department will deny the motion. Arguing based on belief neatly bypasses the actually relevant question, the likelihood of prevailing, which the State Bar must address objectively. Two kinds of information are available to consider the likelihood of outcome: the actual response or lack of response from the Hearing Department to date and the strength of arguments proffered in the motion to reconsider, when compared to the opposition to that motion.
B. The procedural posture of the motion to reconsider does not support the contended low likelihood of respondent’s prevailing.
As regards the procedural posture of the motion to reconsider, Deputy Trial Counsel Lawrence filed an opposition on October 23, 2007. Ten days have since passed. While respondent cannot fairly hold Ms. Lawrence accountable as of October 23 for what she knows on November 2, the fact that ten days have passed without a ruling tends to show that the decision on the motion was not an easy one, and Ms. Lawrence's cavalier belief that the court would deny the motion was unjustified. The length of delay shows that Ms. Lawrence belief that denial was a foregone conclusion does not find support in the judgment roll.
C. The State Bar failed to proffer persuasive arguments in its Opposition to the Motion to Reconsider to support a low likelihood of respondent’s prevailing.
Turning to the arguments advanced, respondent submitted a seven-page brief of tightly constructed argument, to which the State Bar replied with approximately two pages of opposing argument. Unless respondent's arguments were notoriously weak, this observation alone rebuts a conclusion that the motion’s failure is a foregone conclusion. Clearly Ms. Lawrence failed to answer many of the arguments, and those she did answer she answered in a notably superficial manner.
(1) The argument that the motion was untimely is frivolous in light of the court having granted respondent permission to file it after hearing Ms. Lawrence’s arguments at the telephonic status conference.
Ms. Lawrence first argued that the motion to reconsider was untimely. This is a plainly frivolous argument, because Ms. Lawrence raised the alleged untimeliness issue at the telephonic status conference where the court ruled against the State Bar’s motion to dismiss. Were it a foregone conclusion that that the motion was untimely, the court would not have permitted its filing, as the court did consider her argument. Ms. Lawrence provides no authority for her claim that the 15-day limit is mandatory as opposed to advisory. As policy, making the date mandatory would make little sense, because no one benefits from going forward blind to error of law. The Office of the Chief Trial Counsel behaves shamefully when it prefers disposing of a motion that goes to issues of law based on the motion's alleged untimeliness, after the court agreed to allow the filing. The court’s permission precludes any argument to judicial economy that might counter-balance the loss of judicial accuracy. Would Ms. Lawrence have the court ignore the motion, after having taken the time to read it, even with a legally well-taken argument to error of law? And if not, what was the point of making this argument--as her first argument, no less--instead of relying on the argument that the motion lacked merit? Counsel emphasize a procedural argument standing in this posture only when completely lacking confidence in the rebuttal’s merit. One must conclude that Ms. Lawrence’s lack of belief in a substantial probability of respondent prevailing on the motion to reconsider lacked good faith.
(2) Ms. Lawrence fails to offer a serious argument as to the meaning and import of the State Bar cases she cites while misconstruing those cases.
Proceeding to the merit of the rebuttal itself, Ms. Lawrence cites two cases as authority that the judicial error respondent noted was correct application of law. These are Review Department cases, which offer scant basis for challenging the line of California Supreme Court cases respondent cited in his motion for reconsideration. She does not even bother to discuss these Supreme Court cases, and she takes the holding out of context. Matter of McCarthy (2002) 4 Cal. State Bar Ct. Rptr. 364, which Ms. Lawrence does not bother even to quote, states that whether the facts are properly actionable in that State Bar matter is the only issue at hand--the only issue, as opposed to determining whether the facts alleged are true. The case does not intend to say that this is the only issue that ever merits consideration when the State Bar Court rules on a motion to dismiss. That would be contrary not only to the cited Supreme Court cases but to the express meaning of Rules of Procedure, rule 101(b), which states the requirements for legally sufficient charging allegations.
(3) Ms. Lawrence fails to offer any support for her contention that an argument offered for reconsideration in a State Bar case must repeat an argument already made in the underlying motion.
Finally, Ms. Lawrence argues that respondent had not made his main argument in the Motion to Dismiss the NDC. With cavalierness that has become emblematic, the Deputy Trial Counsel first ignores respondents footnote on page 4 of respondent’s Motion to Reconsider, where respondent points out the actual equivalence of this argument and the argument made in the Motion to Dismiss. Secondly, she cites no authority for the strange proposition that only arguments already proffered can be made in a motion to reconsider. Ms. Lawrence would like to have it both ways. The court will deny the motion to reconsider, because respondent offers nothing new. If not that, the court will necessarily deny the motion to reconsider, because that motion fails to repeat arguments already made.
Conclusion
Respondent treats some additional matters the State Bar's motion raises in his attached declaration. Ms. Lawrence, unable to sustain the soundness of her Notice of Disciplinary Charges seeks unlawfully to conduct discovery without constraint in the hope she will have something to put it place of the current NDC, if the State Bar Court finds it insufficient as a matter of law.
Dated: _________________________
By:
Legal Research & Writing Service
Stephen R. Diamond
Respondent’s Declaration in Support of Opposition to Motion to Compel His Deposition
I, Stephen R. Diamond, declare,
1. I am an attorney admitted to the practice of law before all the courts of the State of California and respondent in this matter. I declare to all statements on personal knowledge, and if called upon, I could and would testify competently to them.
2. Respondent requested that Ms. Lawrence continue the deposition for only sufficient time to allow respondent to file a motion for a protective order. A correct copy of this request is attached as Exhibit ‘A.’
3. Ms. Lawrence denied this request. A correct copy of her denial is attached as Exhibit ‘B.’
4. Respondent did not file the motion for a protective order because of calendaring error.
5. Respondent has previously argued and is prepared to argue further that any delay resulted from actions of the State Bar, not from actions of respondent.
6. Respondent motions and opposition represent a good faith effort to defend himself against an insufficient NDC and against improper tactics employed by the Office of the Chief Trial Counsel.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on ________________________________________ in Joshua Tree, San Bernardino County, California.
_________________________________Stephen R. DiamondDeclarant
kanBARoo Court. 17B Installment. Opposition to first motion for default.
I'm going to roll out all of my major pleadings, as they call them in State Bar Court. The important question to a lawyer should be, what got the case to this point? What broke the State Bar? The 18th Installment, which will begin analyzing the question, will conclude that these documents pushed the Bar past its competence. This document is my first opposition to entry of default. You may recall that the court denied both the bar-counsel's first motion and its second one.
____________________
Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, CA 92252
Telephone: (760) 366-1925Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
Case Nos. 05-0-04605 et al.
Opposition to Motion for Entry of Default; Objections to Evidence; Memorandum of Points and Authorities; Declaration of Stephen R. Diamond
Hon: Judge Honn
:
1. In paragraph 4 of her declaration, Ms. Lawrence states the court rejected respondent’s Motion to Reconsider for filing. This conclusory claim lacks any factual foundation. Ms. Lawrence does not submit documents or ask for judicial notice of this purported rejection for filing. She fails even to state how she knows the court rejected this document for filing.
2. In paragraph 6 of her declaration, Ms. Lawrence states “Respondent stated, among other things, that a proof of service is a “mere technicality.’” Ms. Lawrence fails to submit to the court any context for the phrase she quoted, and the evidence respondent has attached to this motion does not support her attribution. Respondent’s comment about hypertechnicality did not pertain to proof of service as such but to the circumstance that Ms. Lawrence admitted actual receipt of the document. If the court had not so apprehended, Ms. Lawrence could have corrected the court’s misapprehension, as Ms. Lawrence’s duty of candor required.
On September 4, 2007, respondent and Ms. Lawrence attended a status conference in Judge Honn’s court. At this status conference, respondent stated he had faxed an unsigned copy of the motion to Ms. Lawrence. Because respondent had a document reproduction problem, the court kindly provided respondent until September 7, 2007 to file and serve the signed papers. Respondent informed the court that he had faxed Ms. Lawrence a copy of the pleading, lacking only a signature, which respondent would supply that same day.
Notwithstanding the extension, respondent succeeded in filing the papers at the fifth floor filing window before the original deadline, September 4, 2007. The filing clerk accepted the papers with respondent’s instructions to deliver the two signed copies to Judge Honn. The clerk in attendance at the fifth floor filing window stamped respondent’s extra copy “Received.” (See Ex. ‘A.’) Before depositing in similar manner the documents with the Clerk of the Bar Court, respondent had served Ms. Lawrence through a fourth floor Clerk.
On September 10, 2007, Ms. Lawrence faxed respondent to assert respondent was in default. A correct copy of the letter is attached as Exhibit 'B.' After further exchange of correspondence (see Exhibits ‘C’ through ‘F’), the State Bar through Lawrence filed a motion for entry of default on September 14, 2007.
Rule 1112 establishes a two-stage system to refuse relief requested by written motion. In the first stage, rule 1112(a) directs the Clerk to reject pleadings with certain defects in proof of service, in signature, or in captioning. In the second stage, rule 1112(b) permits the judge to deny the motion or strike the pleading. Rejection by the clerk and denial/striking by the court are two distinct outcomes, each governed by different rules. To reject the motion for filing, the clerk refuses to accept the motion or returns the documents the same day. After suffering such a rejected motion, respondent may attempt to refile a corrected pleading and proof of service, accompanied if necessary by a motion for late filing. (Rule 1112(c).) Where the court had denied the motion, on the other hand, the court must provide notice of the denial. (Rule 102(a).) Following service of such notice, when it pertains as here to a Motion to Dismiss the Notice of Disciplinary Charges or its sequels, a respondent has ten days to file a responsive pleading. (Rule 1112(c).)
Here, the Clerk accepted the motion for filing. (See Ex. A.”) The court then was required to rule on the motion, possibly denying it, if the court deemed the procedural objections serious enough to so warrant. The court could not have rejected the motion for filing, as the State Bar claims. Respondent had already filed the motion with the court Clerk.
B. A stamp-endorsed pleading, such as respondent’s Exhibit ‘A,’ is a filed pleading.
“[A] paper is deemed filed when it is deposited with the clerk with directions to file the paper. [Citation.] (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777.) Respondent here instructed the fifth floor filing Clerk to deliver the document to Judge Honn. The Clerk agreed and conformed respondent’s copy of the pleading.
In the State Bar Court as in all courts in California, a conformed copy proves filing. In Datig v. Dove Books (1999) 73 Cal.App.4th 964, the court explained how a party might use a conformed copy of a pleading as proof:
____________________
Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, CA 92252
Telephone: (760) 366-1925Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
Case Nos. 05-0-04605 et al.
Opposition to Motion for Entry of Default; Objections to Evidence; Memorandum of Points and Authorities; Declaration of Stephen R. Diamond
Hon: Judge Honn
:
Objections to Evidence
This respondent objects to the following evidence offered by the State Bar. In each instance Ms. Lawrence fails to supply the court or this respondent with the factual foundation for her evidence:1. In paragraph 4 of her declaration, Ms. Lawrence states the court rejected respondent’s Motion to Reconsider for filing. This conclusory claim lacks any factual foundation. Ms. Lawrence does not submit documents or ask for judicial notice of this purported rejection for filing. She fails even to state how she knows the court rejected this document for filing.
2. In paragraph 6 of her declaration, Ms. Lawrence states “Respondent stated, among other things, that a proof of service is a “mere technicality.’” Ms. Lawrence fails to submit to the court any context for the phrase she quoted, and the evidence respondent has attached to this motion does not support her attribution. Respondent’s comment about hypertechnicality did not pertain to proof of service as such but to the circumstance that Ms. Lawrence admitted actual receipt of the document. If the court had not so apprehended, Ms. Lawrence could have corrected the court’s misapprehension, as Ms. Lawrence’s duty of candor required.
Memorandum of Points and Authorities
Procedural Background
The State Bar claims the State Bar Court rejected respondent’s motion for reconsideration. It is undisputed that respondent presented copies to the clerks on the fifth and fourth floors, with instructions to deliver those documents to Judge Honn and Ms. Lawrence. It is also undisputed that this respondent has not received notice of rejection from the court. Ms. Lawrence had not referenced any document providing such notice, whether to respondent or to her. The attached Declaration of Stephen R. Diamond supports the following account of the events.On September 4, 2007, respondent and Ms. Lawrence attended a status conference in Judge Honn’s court. At this status conference, respondent stated he had faxed an unsigned copy of the motion to Ms. Lawrence. Because respondent had a document reproduction problem, the court kindly provided respondent until September 7, 2007 to file and serve the signed papers. Respondent informed the court that he had faxed Ms. Lawrence a copy of the pleading, lacking only a signature, which respondent would supply that same day.
Notwithstanding the extension, respondent succeeded in filing the papers at the fifth floor filing window before the original deadline, September 4, 2007. The filing clerk accepted the papers with respondent’s instructions to deliver the two signed copies to Judge Honn. The clerk in attendance at the fifth floor filing window stamped respondent’s extra copy “Received.” (See Ex. ‘A.’) Before depositing in similar manner the documents with the Clerk of the Bar Court, respondent had served Ms. Lawrence through a fourth floor Clerk.
On September 10, 2007, Ms. Lawrence faxed respondent to assert respondent was in default. A correct copy of the letter is attached as Exhibit 'B.' After further exchange of correspondence (see Exhibits ‘C’ through ‘F’), the State Bar through Lawrence filed a motion for entry of default on September 14, 2007.
Argument
1. The Clerk accepted respondent’s motion for filing on September 4, and the court lacked jurisdiction to reject the same document on September 10.
A. The State Bar Court’s Rules of Practice, rule 1112(b), requires that the State Bar Court consider the motion on its merits once the Clerk has filed it.Rule 1112 establishes a two-stage system to refuse relief requested by written motion. In the first stage, rule 1112(a) directs the Clerk to reject pleadings with certain defects in proof of service, in signature, or in captioning. In the second stage, rule 1112(b) permits the judge to deny the motion or strike the pleading. Rejection by the clerk and denial/striking by the court are two distinct outcomes, each governed by different rules. To reject the motion for filing, the clerk refuses to accept the motion or returns the documents the same day. After suffering such a rejected motion, respondent may attempt to refile a corrected pleading and proof of service, accompanied if necessary by a motion for late filing. (Rule 1112(c).) Where the court had denied the motion, on the other hand, the court must provide notice of the denial. (Rule 102(a).) Following service of such notice, when it pertains as here to a Motion to Dismiss the Notice of Disciplinary Charges or its sequels, a respondent has ten days to file a responsive pleading. (Rule 1112(c).)
Here, the Clerk accepted the motion for filing. (See Ex. A.”) The court then was required to rule on the motion, possibly denying it, if the court deemed the procedural objections serious enough to so warrant. The court could not have rejected the motion for filing, as the State Bar claims. Respondent had already filed the motion with the court Clerk.
B. A stamp-endorsed pleading, such as respondent’s Exhibit ‘A,’ is a filed pleading.
“[A] paper is deemed filed when it is deposited with the clerk with directions to file the paper. [Citation.] (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777.) Respondent here instructed the fifth floor filing Clerk to deliver the document to Judge Honn. The Clerk agreed and conformed respondent’s copy of the pleading.
In the State Bar Court as in all courts in California, a conformed copy proves filing. In Datig v. Dove Books (1999) 73 Cal.App.4th 964, the court explained how a party might use a conformed copy of a pleading as proof:
The only ground for defendants' ex parte application was that plaintiff had failed to file her amended complaint within the 20 days allowed. It would have been a simple and relatively inexpensive matter to oppose the application or the motion by simply presenting a conformed copy of the timely-filed SAC. (Datig v. Dove Books Inc., supra, 73 Cal.App.4th at pp. 978-979.)
A filing mark is not necessary to prove filing, but it is sufficient. (Dillon v. Superior Court (1914) 24 Cal.App. 760 [“Had the bond gone up with the papers in the case without any filing mark the fact that it was presented to the justice with a request to file it could have been shown in the superior court and would have been sufficient.”].)
2. Even assuming that the Bar Court both had jurisdiction to reject the document for filing after its acceptance by the Clerk, this respondent had no notice of the rejection before the State Bar announced it would move for default.
Respondent received no proper notice of any rejection. The court provided no notice. Ms. Lawrence failed to provide notice before filing her motion for entry of default.
A. Had the State Bar Court through Judge Honn struck the pleading, it would and should have given respondent notice in writing.
Respondent is entitled to court notice of rejection, because such rejection substantially affects respondent’s rights. Rojas v. Cutsforth, supra, 67 Cal.App.4th 77 shows what the law requires when the pleading is struck based on an insubstantial defect, in Rojas, failure to sign. Similar considerations apply any minor defect, such as failure to provide a proof of service.
Where, as here, the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity. (See Code Civ. Proc., § 128.7, subd. (a), providing in part that "An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.") That should create no more difficulty than returning all the documents with a notice pointing out the defects. To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration. (Rojas v. Cutsforth, supra, at p. 777.)
Moving for entry of default for failing to file proof of service when the moving party received the pleading before the deadline makes no less a mockery of judicial administration in the State Bar Court than in civil court.
B. Even assuming opposing counsel, as opposed to the court, could properly supply notice of the court’s striking of a pleading, opposing counsel never provided such notice.
In her first letter’s first paragraph, Ms. Lawrence purports to provide notice of the supposedly rejected pleading:
Ms. Lawrence does not here state, as she later claims, that the court rejected the pleading for filing. Ms. Lawrence could not have known whether the court rejected the motion for filing, since she lacks knowledge of respondent’s depositing the document with the State Bar Court on the fifth floor. Respondent has no idea of what Ms. Lawrence means when she states “I do not see ...” What is she observing, such that she might expect to “see” evidence of having filed the document? Why is she telling respondent of a rejection and threatening a motion to enter default, when she has no affirmative evidence that the court rejected the respondent’s motion? Ms. Lawrence continued to refuse to clarify the source of her information when respondent pointedly inquired in the ensuing correspondence. (See Exs. ‘B,’ ‘C,’ and ‘D.’) She concluded the court rejected the pleading based on the fact that she received no proof of service, combined with her belief that the court would not accept a motion without an attached proof of service. Learning from respondent that the Clerk had filed the pleading failed to dissuade Ms. Lawrence.
In her declaration under penalty of perjury, Ms. Lawrence reports that she mailed and faxed respondent the letter containing the above quoted first paragraph, here attached as Exhibit ‘B.’ In that declaration, Ms. Lawrence summarizes what she conveyed to this respondent: “In the letter I told Respondent that he had not included a Proof of Service and so, he had not properly served and filed any responsive document by September 7, 2007, as the Court had ordered.” (Declaration of Melanie J. Lawrence, paragraph 5, 5:19 – 21.) Yet she goes further in her declaration than in any correspondence with respondent, making her first definite statement that the court had rejected the document for filing. This contrasts with her correspondence, where she reasons that the court must have rejected the filing. States Ms. Lawrence at her declaration’s paragraph 4, “On September 10, 2007, I called 562-221-6873, the telephone number listed on the Motion to Reconsider that the Court rejected for filing on September 10, 2007.” (Declaration of Melanie J. Lawrence, 5:12 -13.) But Ms. Lawrence nowhere explains when or how she moved from her inference in correspondence that the court must have rejected the pleading, to definite knowledge that the court rejected the pleading, as she stated in paragraph 5 of her declaration. This conclusion, however inferred, remains inadequate as evidence. Ms. Lawrence lays no foundation for knowing the court rejected the document, and she provides no explanation for why she did not state her definite knowledge of the court’s rejection for filing in her correspondence with respondent, here attached as Exhibits ‘B’ ‘C,’ ‘D,’ ‘E,’ and ‘F.’
Whether the clerk or court has rejected, struck, or denied a motion is not for opposing counsel to say. Until she filed her motion on September 14, Ms. Lawrence nowhere stated that the court had rejected the document for filing. She only stated she believed that the court must have rejected the document. Such speculation is not notice.
The attitude taken by the State Bar is identical to the "paltry nitpicking” that the Rojas court condemned, although lacking the jurisdiction of the clerks admonished in that case. Said the Rojas court: “It is difficult enough to practice law without having the clerk's office as an adversary. Here, paltry nit-picking took the place of common sense and fairness.” (Rojas v. Cutsforth, supra, 67 Cal.App.4th at p. 777.) Lacking the authority to give original notice of failure to file a pleading properly, yet pretending to such authority and expressing the pretense in a draconic motion is not, as in Rojas v. Cutsforth, “paltry.” Such conduct should be characterized as malicious.
3. The State Bar’s motion to dismiss is frivolous, malicious, and outrageous.
The State Bar's motion for dismissal is both outrageous and frivolous. The State Bar moves for disbarment without even providing previous notice of respondent’s alleged failure to provide a proof of service, while Ms. Lawrence admits she received actual notice—she got the signed document on September 4. Respondent must assume the opposing counsel was untruthful in reporting the court's rejection. As respondent pointed out in correspondence, the court would have provided notice to respondent of any rejection. (See Ex. ‘C.’) To move for a default on so flimsy a basis, to provide a mere façade of notice, is serious enough. To misunderstand the actions of the court so fundamentally is at best the reckless disregard for respondent's rights. To fabricate a rejection, in vain hope respondent will fail to respond, smacks of fraud on the court and constitutes misconduct of such dimension as to reveal moral turpitude.
The State Bar desperately wanted to get rid of this case from its inception. This respondent's first contact with State Bar Enforcement, when the investigation had barely started, involved an investigator attempting to pressure respondent to resign. With this case’s deep legal defects, State Bar Enforcement knew it could not win on the merits. So important was disposing of the case by any means that it justified extortion, as when the investigator promised that the District Attorney would receive the case records only if respondent’s refusal to resign compelled continued investigation. The State Bar appears to believe that when charges are serious enough, they are true; then, the end justifies the means.
Dated:
By:
Legal Research & Writing Service
Stephen R. Diamond
Declaration of Stephen R. Diamond
I, Stephen R. Diamond, declare:
1. The statements in this declaration are made from personal knowledge. If called upon to testify to them at trial, I would do so competently.
2. I am an attorney admitted to practice law in all California courts. I am the Respondent in this proceeding.
3. Exhibit ‘A’ is a true and correct copy of the conformance page, as stamp-endorsed by the Clerk of the State Bar Court.
4. Exhibit ‘B’ is a true copy of Ms. Lawrence’s fax to this respondent on September 10, 2007.
5. Exhibit ‘C’ is a true copy of respondent’s response to this fax in the afternoon of September10, 2007.
6. Exhibit ‘D’ is a true copy of respondent’s second fax, sent in the evening of September 10, 2007, mainly to correct an error in the previous facsimile about the location of the State Bar Court’s clerk.
7. Exhibit ‘E’ is a true copy of Ms. Lawrence’s fax to respondent on September 11, 2007.
8. Exhibit ‘F’ is a true copy of respondent’s response to this fax, transmitted on September 11, 2007.
9. On September 4, 2007, respondent and Ms. Lawrence both attended a status conference in Judge Honn’s court, where respondent stated he had faxed an unsigned copy of the motion to Ms. Lawrence. Because respondent had a document reproduction problem, the court kindly provided respondent until September 7, 2007 to file and serve signed papers. In open court, Ms. Lawrence agreed to lend the copy respondent had faxed her so that respondent could make a timely filing despite his lack of a printer.
10. Despite this agreement, Ms. Lawrence declined to allow respondent to borrow this document after the hearing.
11. Notwithstanding the problems and the extension, respondent succeeded in filing papers on September 4, 2007 that the fifth floor clerk accepted, after respondent instructed the clerk to deliver the two signed copies to Judge Honn. The State Bar Court Clerk on the fifth floor of the State Bar Building stamped respondent’s extra copy “Received.” (See Ex. ‘A.’)
12. Before the clerk on the fifth floor accepted the Motion to Reconsider in duplicate for filing and agreed to deliver the documents to Judge Honn, respondent visited the fourth floor, where he instructed a clerk who identified herself as authorized to accept documents for Ms. Lawrence to deliver to her a document identical to those filed on the fifth.
13. Respondent had been unaware of the absence of the proof of service until informed of this by Ms. Lawrence on September 10, 2007. Although the State Bar Court clerk examined the documents for the presence of an original signature and correct caption matter, he did not appear to look for a proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing true and correct.
Executed in San Bernardino County, California 92252 on September 27, 2007.
__________________________________
Stephen R. Diamond, declarant
2. Even assuming that the Bar Court both had jurisdiction to reject the document for filing after its acceptance by the Clerk, this respondent had no notice of the rejection before the State Bar announced it would move for default.
Respondent received no proper notice of any rejection. The court provided no notice. Ms. Lawrence failed to provide notice before filing her motion for entry of default.
A. Had the State Bar Court through Judge Honn struck the pleading, it would and should have given respondent notice in writing.
Respondent is entitled to court notice of rejection, because such rejection substantially affects respondent’s rights. Rojas v. Cutsforth, supra, 67 Cal.App.4th 77 shows what the law requires when the pleading is struck based on an insubstantial defect, in Rojas, failure to sign. Similar considerations apply any minor defect, such as failure to provide a proof of service.
Where, as here, the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity. (See Code Civ. Proc., § 128.7, subd. (a), providing in part that "An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.") That should create no more difficulty than returning all the documents with a notice pointing out the defects. To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration. (Rojas v. Cutsforth, supra, at p. 777.)
Moving for entry of default for failing to file proof of service when the moving party received the pleading before the deadline makes no less a mockery of judicial administration in the State Bar Court than in civil court.
B. Even assuming opposing counsel, as opposed to the court, could properly supply notice of the court’s striking of a pleading, opposing counsel never provided such notice.
In her first letter’s first paragraph, Ms. Lawrence purports to provide notice of the supposedly rejected pleading:
I do not see that you filed an answer to the Notice of Disciplinary Charges or a Motion to Reconsider the Court's order denying your Motion Dismiss by September 7, 2007, as the Court ordered you to do. Apparently you, or someone on your behalf, left a Motion to Reconsider on the 4th Floor of the State Bar Offices on September 4, 2007, but it did not include a Proof of Service If you tried to file it without one, the Court would reject it. Further, it is not "filed" with the State Bar Court when you drop it off on the 4th floor.(Ex. ‘B.’)
Ms. Lawrence does not here state, as she later claims, that the court rejected the pleading for filing. Ms. Lawrence could not have known whether the court rejected the motion for filing, since she lacks knowledge of respondent’s depositing the document with the State Bar Court on the fifth floor. Respondent has no idea of what Ms. Lawrence means when she states “I do not see ...” What is she observing, such that she might expect to “see” evidence of having filed the document? Why is she telling respondent of a rejection and threatening a motion to enter default, when she has no affirmative evidence that the court rejected the respondent’s motion? Ms. Lawrence continued to refuse to clarify the source of her information when respondent pointedly inquired in the ensuing correspondence. (See Exs. ‘B,’ ‘C,’ and ‘D.’) She concluded the court rejected the pleading based on the fact that she received no proof of service, combined with her belief that the court would not accept a motion without an attached proof of service. Learning from respondent that the Clerk had filed the pleading failed to dissuade Ms. Lawrence.
In her declaration under penalty of perjury, Ms. Lawrence reports that she mailed and faxed respondent the letter containing the above quoted first paragraph, here attached as Exhibit ‘B.’ In that declaration, Ms. Lawrence summarizes what she conveyed to this respondent: “In the letter I told Respondent that he had not included a Proof of Service and so, he had not properly served and filed any responsive document by September 7, 2007, as the Court had ordered.” (Declaration of Melanie J. Lawrence, paragraph 5, 5:19 – 21.) Yet she goes further in her declaration than in any correspondence with respondent, making her first definite statement that the court had rejected the document for filing. This contrasts with her correspondence, where she reasons that the court must have rejected the filing. States Ms. Lawrence at her declaration’s paragraph 4, “On September 10, 2007, I called 562-221-6873, the telephone number listed on the Motion to Reconsider that the Court rejected for filing on September 10, 2007.” (Declaration of Melanie J. Lawrence, 5:12 -13.) But Ms. Lawrence nowhere explains when or how she moved from her inference in correspondence that the court must have rejected the pleading, to definite knowledge that the court rejected the pleading, as she stated in paragraph 5 of her declaration. This conclusion, however inferred, remains inadequate as evidence. Ms. Lawrence lays no foundation for knowing the court rejected the document, and she provides no explanation for why she did not state her definite knowledge of the court’s rejection for filing in her correspondence with respondent, here attached as Exhibits ‘B’ ‘C,’ ‘D,’ ‘E,’ and ‘F.’
Whether the clerk or court has rejected, struck, or denied a motion is not for opposing counsel to say. Until she filed her motion on September 14, Ms. Lawrence nowhere stated that the court had rejected the document for filing. She only stated she believed that the court must have rejected the document. Such speculation is not notice.
The attitude taken by the State Bar is identical to the "paltry nitpicking” that the Rojas court condemned, although lacking the jurisdiction of the clerks admonished in that case. Said the Rojas court: “It is difficult enough to practice law without having the clerk's office as an adversary. Here, paltry nit-picking took the place of common sense and fairness.” (Rojas v. Cutsforth, supra, 67 Cal.App.4th at p. 777.) Lacking the authority to give original notice of failure to file a pleading properly, yet pretending to such authority and expressing the pretense in a draconic motion is not, as in Rojas v. Cutsforth, “paltry.” Such conduct should be characterized as malicious.
3. The State Bar’s motion to dismiss is frivolous, malicious, and outrageous.
The State Bar's motion for dismissal is both outrageous and frivolous. The State Bar moves for disbarment without even providing previous notice of respondent’s alleged failure to provide a proof of service, while Ms. Lawrence admits she received actual notice—she got the signed document on September 4. Respondent must assume the opposing counsel was untruthful in reporting the court's rejection. As respondent pointed out in correspondence, the court would have provided notice to respondent of any rejection. (See Ex. ‘C.’) To move for a default on so flimsy a basis, to provide a mere façade of notice, is serious enough. To misunderstand the actions of the court so fundamentally is at best the reckless disregard for respondent's rights. To fabricate a rejection, in vain hope respondent will fail to respond, smacks of fraud on the court and constitutes misconduct of such dimension as to reveal moral turpitude.
The State Bar desperately wanted to get rid of this case from its inception. This respondent's first contact with State Bar Enforcement, when the investigation had barely started, involved an investigator attempting to pressure respondent to resign. With this case’s deep legal defects, State Bar Enforcement knew it could not win on the merits. So important was disposing of the case by any means that it justified extortion, as when the investigator promised that the District Attorney would receive the case records only if respondent’s refusal to resign compelled continued investigation. The State Bar appears to believe that when charges are serious enough, they are true; then, the end justifies the means.
Conclusion
If the State Bar routinely uses its power to move for dismissal under Rule 200 in so coercive a fashion, this practice will effectively deprive respondents of due process. Whatever the merits of their positions, respondents will not risk the potential immediate result of noncompliance, disenrollment. This no-contest atmosphere must stymy the development of State Bar law. The court should not allow Bar Counsel to exploit rule 200 and its draconian penalties frivolously or maliciously. Chilling the right to vigorously defend a State Bar case necessarily ensues. Because of the unethical tactics employed by State Bar Enforcement, the court should supervise this case with greater than usual attentiveness.Dated:
By:
Legal Research & Writing Service
Stephen R. Diamond
Declaration of Stephen R. Diamond
I, Stephen R. Diamond, declare:
1. The statements in this declaration are made from personal knowledge. If called upon to testify to them at trial, I would do so competently.
2. I am an attorney admitted to practice law in all California courts. I am the Respondent in this proceeding.
3. Exhibit ‘A’ is a true and correct copy of the conformance page, as stamp-endorsed by the Clerk of the State Bar Court.
4. Exhibit ‘B’ is a true copy of Ms. Lawrence’s fax to this respondent on September 10, 2007.
5. Exhibit ‘C’ is a true copy of respondent’s response to this fax in the afternoon of September10, 2007.
6. Exhibit ‘D’ is a true copy of respondent’s second fax, sent in the evening of September 10, 2007, mainly to correct an error in the previous facsimile about the location of the State Bar Court’s clerk.
7. Exhibit ‘E’ is a true copy of Ms. Lawrence’s fax to respondent on September 11, 2007.
8. Exhibit ‘F’ is a true copy of respondent’s response to this fax, transmitted on September 11, 2007.
9. On September 4, 2007, respondent and Ms. Lawrence both attended a status conference in Judge Honn’s court, where respondent stated he had faxed an unsigned copy of the motion to Ms. Lawrence. Because respondent had a document reproduction problem, the court kindly provided respondent until September 7, 2007 to file and serve signed papers. In open court, Ms. Lawrence agreed to lend the copy respondent had faxed her so that respondent could make a timely filing despite his lack of a printer.
10. Despite this agreement, Ms. Lawrence declined to allow respondent to borrow this document after the hearing.
11. Notwithstanding the problems and the extension, respondent succeeded in filing papers on September 4, 2007 that the fifth floor clerk accepted, after respondent instructed the clerk to deliver the two signed copies to Judge Honn. The State Bar Court Clerk on the fifth floor of the State Bar Building stamped respondent’s extra copy “Received.” (See Ex. ‘A.’)
12. Before the clerk on the fifth floor accepted the Motion to Reconsider in duplicate for filing and agreed to deliver the documents to Judge Honn, respondent visited the fourth floor, where he instructed a clerk who identified herself as authorized to accept documents for Ms. Lawrence to deliver to her a document identical to those filed on the fifth.
13. Respondent had been unaware of the absence of the proof of service until informed of this by Ms. Lawrence on September 10, 2007. Although the State Bar Court clerk examined the documents for the presence of an original signature and correct caption matter, he did not appear to look for a proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing true and correct.
Executed in San Bernardino County, California 92252 on September 27, 2007.
__________________________________
Stephen R. Diamond, declarant
kanBARoo Court. 17A Installment. Motion to Reconsider Denial of Dismissal Motion
Below is the motion for reconsideration, filed when the court denied my motion to dismiss
The argument in this motion for reconsideration provides less insight into the controversy's legal essence than the motion to dismiss, but it is also simpler, more direct, and based in on-point authority. I don't think a judge could reasonably deny it. Initially, the only repercussion suffered by the State Bar would be having to file a revised notice of disciplinary charges.
Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
:
:
Case Nos. 05-0-04605 et al.
Motion to Reconsider Order Denying Motion to Dismiss
(Date Order Filed: August 17, 2007)
(Rules of Procedure, rule 224)
:
:
Grounds
1. Issue
The Hearing Court exonerated the NDC because the evidence it alleges would prove the offenses. The NDC must not only provide evidence for the charges and designate the violated enactment but must also state the manner in which the alleged conduct violates the enactment. Should the Hearing Court reconsider its order denying the motion to dismiss, because the NDC fails throughout to allege the manner in which petitioner’s conduct violates the enactment?
2. The court’s error of law is the basis for the present motion
This motion is based on Rules of Procedure, rule 224(b)(2), which permits motions for reconsideration where petitioner believes the court has made an error of law.
The grounds for a motion for reconsideration are (1) new or different facts, circumstances or law, as that ground is applied in civil matters under Code of Civil Procedure section 1008; and/or (2) the order or decision contains one or more errors of fact and/or law based on the evidence already before the Court.
The Hearing Court erred in basing its denial on the following statement of law:
The Supreme Court holds that each charge must contain a description of the manner in which the alleged conduct violates the enactment, not only for proper review but also to afford the California due process rights that grant sufficient notice of charges.
3. Other considerations warrant reconsideration
A. The court misapprehended petitioner’s basis for the motion to dismiss.
Petitioner based nothing on the “Statement of the Case” in petitioner’s pure legal argument for dismissing the NDC. The court apparently thought petitioner was making an argument based on extrinsic facts.
B. Petitioner has subsequently located substantially stronger authority than that previously cited.
This motion for reconsideration contains law unknown to Petitioner at the time of filing the Motion to Dismiss. This law supports petitioner's argument more strongly and directly than cases previously cited. The law includes 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 of California (1989)al.3d 804; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968. In these cases, the Supreme Court clarifies this requirement for pleading the manner in which the offending conduct violates the statutes or rules.
The due process requirements for the State Bar Court are those either contained in the Rules of Procedure or those comprising the general rules of due process. The requirements for pleading are treated at Rules of Practice, rule 101. These rules are due process rules because they relate to notice, notice being perhaps the most general rule of due process.
1. The NDC must link alleged conduct and enactment to state a disciplinable offense
Contrary to the contentions of the State Bar and of the State Bar Court, merely reciting the evidence that would prove the violation does not suffice to state a disciplinable offense. Rather, the charges must contain a valid explanation linking the alleged conduct to the allegedly violated enactment. As the Supreme Court voiced its frustration with this pleading issue[1]:
The Supreme Court restated this admonition in Sugarman v. State Bar of California (1990) 51 Cal. 3d 609, 618), and it had predecessors in Maltaman v. State Bar (1987) 43 Cal.3d 924, 931 and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968.
A. The effect of the omission is pervasive
The failure to plead the manner in which the alleged conduct violates a specific statute infects the entire complaint. In no count does the State Bar make the required linkage.
While the omission is pervasive, and charges must always be alleged with specificity, the courts have provided additional guidelines to which allegations must conform. In other instances, what information is necessary for the parties to provide can be determined from the complaint as a whole. Here, case law has established requirements for alleging aiding and abetting, as a matter of general due process. The need to allege how the client relationship was established can appear from the case as a whole.
B. California due process requires pleading and proving scienter for aiding and abetting.
The argument is straightforward. The NDC must allege offenses factually and specifically. The courts have held that aiding and abetting necessarily involves scienter. Thus, factual pleading must include pleading all the elements of aiding and abetting. Failing to plead scienter leaves unstated the actual link between alleged conduct and rule violated. Not to allege knowledge of purpose is to leave the linkage unstated, as admonished against by the Supreme Court, because scienter[2] is part of the necessary explanation of the manner of violation of the enactment.
C. The case requires pleading formation of an attorney-client relationship.
Any sufficiently informative explanation of how the conduct here alleged violates statutes or rules cannot avoid expressly alleging the formation of a client-attorney relationship with Defrauded Persons[3]. The enactments petitioner allegedly violated are often statutes designed to protect clients. The NDC admits the indirect formation of the attorney-client relationship. Because of this at-most indirect formation of the attorney-client relationship, the manner the alleged conduct violates the enactments cannot be explained without factually pleading the relationship’s manner of formation. That is a necessary part of the chain of explanation.
2. Responding to the State Bar’s Opposition to Motion to Dismiss further clarifies the issues.
Respondent State Bar made several arguments in the State Bar's Opposition to the Motion to Dismiss that are relevant to the motion to reconsider.
A. Literal pleading of all the elements expressly stated by statute does not guarantee stating a disciplinable offense.
The State Bar argued that since Rules of Professional Conduct, Rule 1-300(A), does not include scienter as an element, it is unnecessary to plead it. Pleading requirements often derive from case law. If the law in question is statutory rather than codified common law, it must always be pled specifically. Insofar as the statutes reference common law concepts, these must be pleaded with full specificity too.
As applied to the aiding and abetting charges, The State Bar argues:
· The NDC must be pled specifically and factually (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016);
· Specific and factual pleading of aiding and abetting in California includes scienter. (People v. Tillotson (2007) __Cal.App.4th__).
B. Different forms of contract makes specific allegation more important, not less important.
The State Bar points out that various manner of contracting is possible, an observation that actually supports petitioner's argument. The Supreme Court has pointed out that the manner in which the conduct violates the enactment must be specified. If the State Bar responds that there are various manners of contracting, then it must explain which manner of contracting it alleges of petitioner. In what manner did petitioner form a contract with Defrauded Persons, whom the State Bar designates 'Clients'?
C. More is needed than the facts proving an offense.
The State Bar argues that the facts alleged suffice to convict, hence are sufficient to state a disciplinable charge. These papers have already treated this issue.
D. The State Bar has not properly alleged petitioner’s formation of a partnership with a non-lawyer.
Petitioner established that the State Bar has not properly alleged partnership with a non-lawyer. The allegations simply do not correspond to the definition of “partnership” in California. This controversy was not the subject of any commentary in the court order. Even if the State Bar Court decided this was the only error in the NDC, the court should have granted the motion to dismiss under accepted procedures. (See In re McCarthy (2002) No. 96-O-00528 [Motion to dismiss NDC can apply to a single count].)
Dated:______
By:
Legal Research & Writing Service
Stephen R. Diamond
[1] This issue is identical in substance to petitioner’s argument in the Motion to Dismiss that the NDC should allege ultimate facts. This formulation uses different terms of art, here, terms of art used by the most dispositive authority.
[2] Henceforth, “scienter” will be employed as shorthand for specific knowledge of the perpetrator’s purpose.
[3] Shorthand adopted in Motion to Dismiss for individuals defrauded by Kim and Shin.
[4] The text of Rules of Procedure, rule 262, does not reveal, for example, that a motion to dismiss can be directed against specific counts.
The argument in this motion for reconsideration provides less insight into the controversy's legal essence than the motion to dismiss, but it is also simpler, more direct, and based in on-point authority. I don't think a judge could reasonably deny it. Initially, the only repercussion suffered by the State Bar would be having to file a revised notice of disciplinary charges.
Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles
In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
:
:
Case Nos. 05-0-04605 et al.
Motion to Reconsider Order Denying Motion to Dismiss
(Date Order Filed: August 17, 2007)
(Rules of Procedure, rule 224)
:
:
Grounds
1. Issue
The Hearing Court exonerated the NDC because the evidence it alleges would prove the offenses. The NDC must not only provide evidence for the charges and designate the violated enactment but must also state the manner in which the alleged conduct violates the enactment. Should the Hearing Court reconsider its order denying the motion to dismiss, because the NDC fails throughout to allege the manner in which petitioner’s conduct violates the enactment?
2. The court’s error of law is the basis for the present motion
This motion is based on Rules of Procedure, rule 224(b)(2), which permits motions for reconsideration where petitioner believes the court has made an error of law.
The grounds for a motion for reconsideration are (1) new or different facts, circumstances or law, as that ground is applied in civil matters under Code of Civil Procedure section 1008; and/or (2) the order or decision contains one or more errors of fact and/or law based on the evidence already before the Court.
The Hearing Court erred in basing its denial on the following statement of law:
The facts alleged in the NDC, if proven, would constitute disciplinable offenses. The appropriate time for respondent to present them will be at the hearing on the merits.Petitioner maintains that the above is an incorrect statement of the law because it contradicts governing Supreme Court holdings. The holding of this court is that the allegations alleged suffice because the allegations, if proven, would establish a disciplinable offense. The Supreme Court, however, has repeatedly held that the NDC must include not only a description of the offending conduct and the enactment it violates, but also the manner in which the conduct violates the enactment. A typical Supreme Court holding in this line of cases is:
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. [Citations.](Baker v. State Bar (1989) 49 Cal.3d 804, 816.)
The Supreme Court holds that each charge must contain a description of the manner in which the alleged conduct violates the enactment, not only for proper review but also to afford the California due process rights that grant sufficient notice of charges.
3. Other considerations warrant reconsideration
A. The court misapprehended petitioner’s basis for the motion to dismiss.
Petitioner based nothing on the “Statement of the Case” in petitioner’s pure legal argument for dismissing the NDC. The court apparently thought petitioner was making an argument based on extrinsic facts.
B. Petitioner has subsequently located substantially stronger authority than that previously cited.
This motion for reconsideration contains law unknown to Petitioner at the time of filing the Motion to Dismiss. This law supports petitioner's argument more strongly and directly than cases previously cited. The law includes 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 of California (1989)al.3d 804; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968. In these cases, the Supreme Court clarifies this requirement for pleading the manner in which the offending conduct violates the statutes or rules.
The due process requirements for the State Bar Court are those either contained in the Rules of Procedure or those comprising the general rules of due process. The requirements for pleading are treated at Rules of Practice, rule 101. These rules are due process rules because they relate to notice, notice being perhaps the most general rule of due process.
1. The NDC must link alleged conduct and enactment to state a disciplinable offense
Contrary to the contentions of the State Bar and of the State Bar Court, merely reciting the evidence that would prove the violation does not suffice to state a disciplinable offense. Rather, the charges must contain a valid explanation linking the alleged conduct to the allegedly violated enactment. As the Supreme Court voiced its frustration with this pleading issue[1]:
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. [Citations.](Baker v. State Bar (1989) 49 Cal.3d 804, 816.)
The Supreme Court restated this admonition in Sugarman v. State Bar of California (1990) 51 Cal. 3d 609, 618), and it had predecessors in Maltaman v. State Bar (1987) 43 Cal.3d 924, 931 and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968.
A. The effect of the omission is pervasive
The failure to plead the manner in which the alleged conduct violates a specific statute infects the entire complaint. In no count does the State Bar make the required linkage.
While the omission is pervasive, and charges must always be alleged with specificity, the courts have provided additional guidelines to which allegations must conform. In other instances, what information is necessary for the parties to provide can be determined from the complaint as a whole. Here, case law has established requirements for alleging aiding and abetting, as a matter of general due process. The need to allege how the client relationship was established can appear from the case as a whole.
B. California due process requires pleading and proving scienter for aiding and abetting.
The argument is straightforward. The NDC must allege offenses factually and specifically. The courts have held that aiding and abetting necessarily involves scienter. Thus, factual pleading must include pleading all the elements of aiding and abetting. Failing to plead scienter leaves unstated the actual link between alleged conduct and rule violated. Not to allege knowledge of purpose is to leave the linkage unstated, as admonished against by the Supreme Court, because scienter[2] is part of the necessary explanation of the manner of violation of the enactment.
C. The case requires pleading formation of an attorney-client relationship.
Any sufficiently informative explanation of how the conduct here alleged violates statutes or rules cannot avoid expressly alleging the formation of a client-attorney relationship with Defrauded Persons[3]. The enactments petitioner allegedly violated are often statutes designed to protect clients. The NDC admits the indirect formation of the attorney-client relationship. Because of this at-most indirect formation of the attorney-client relationship, the manner the alleged conduct violates the enactments cannot be explained without factually pleading the relationship’s manner of formation. That is a necessary part of the chain of explanation.
2. Responding to the State Bar’s Opposition to Motion to Dismiss further clarifies the issues.
Respondent State Bar made several arguments in the State Bar's Opposition to the Motion to Dismiss that are relevant to the motion to reconsider.
A. Literal pleading of all the elements expressly stated by statute does not guarantee stating a disciplinable offense.
The State Bar argued that since Rules of Professional Conduct, Rule 1-300(A), does not include scienter as an element, it is unnecessary to plead it. Pleading requirements often derive from case law. If the law in question is statutory rather than codified common law, it must always be pled specifically. Insofar as the statutes reference common law concepts, these must be pleaded with full specificity too.
As applied to the aiding and abetting charges, The State Bar argues:
With that general background pled, each of counts one, seven, seventeen, and twenty-one, plead that a client employed Respondent, through Kim and staff, to represent him/her in a legal matter… Respondent may choose to argue in his defense that he did not know Kim and his associates were engaged in wrongful conduct, all that is required to plead the charge is Respondent's willfulness in aiding another person or entity in the unauthorized practice of law.While the State Bar announces that the pleading is sufficient, it supplies no authority in support. The authority for the alternative view espoused by petitioner derives from these propositions:
· The NDC must be pled specifically and factually (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016);
· Specific and factual pleading of aiding and abetting in California includes scienter. (People v. Tillotson (2007) __Cal.App.4th__).
B. Different forms of contract makes specific allegation more important, not less important.
The State Bar points out that various manner of contracting is possible, an observation that actually supports petitioner's argument. The Supreme Court has pointed out that the manner in which the conduct violates the enactment must be specified. If the State Bar responds that there are various manners of contracting, then it must explain which manner of contracting it alleges of petitioner. In what manner did petitioner form a contract with Defrauded Persons, whom the State Bar designates 'Clients'?
C. More is needed than the facts proving an offense.
The State Bar argues that the facts alleged suffice to convict, hence are sufficient to state a disciplinable charge. These papers have already treated this issue.
D. The State Bar has not properly alleged petitioner’s formation of a partnership with a non-lawyer.
Petitioner established that the State Bar has not properly alleged partnership with a non-lawyer. The allegations simply do not correspond to the definition of “partnership” in California. This controversy was not the subject of any commentary in the court order. Even if the State Bar Court decided this was the only error in the NDC, the court should have granted the motion to dismiss under accepted procedures. (See In re McCarthy (2002) No. 96-O-00528 [Motion to dismiss NDC can apply to a single count].)
Conclusion
The legal issues are difficult because of the amorphousness of State Bar Court pleading requirements, which have not been subject to extensive construal, despite some patent ambiguities.[4] The court should resolve the legal issues properly. The court should not delay resolution until the hearing on the merits. The court should not require petitioner to face charges that fail to state disciplinable offenses.Dated:______
By:
Legal Research & Writing Service
Stephen R. Diamond
[1] This issue is identical in substance to petitioner’s argument in the Motion to Dismiss that the NDC should allege ultimate facts. This formulation uses different terms of art, here, terms of art used by the most dispositive authority.
[2] Henceforth, “scienter” will be employed as shorthand for specific knowledge of the perpetrator’s purpose.
[3] Shorthand adopted in Motion to Dismiss for individuals defrauded by Kim and Shin.
[4] The text of Rules of Procedure, rule 262, does not reveal, for example, that a motion to dismiss can be directed against specific counts.
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