Friday, December 7, 2007

kanBARoo Court. 14th Installment. Turning Point.

The California State Bar's Enforcement Division, Hearing Department, and Review Department share a common building, undermining any contemplated adversarial quality in their relations. The Enforcement Division and the Hearing Department reside on adjacent floors; the Hearing Department and the Review Department are on the same floor and share their clerical office. That office was the place where Deputy Trial Counsel Melanie J. Lawrence perpetrated a fraud against me and the court to try to defeat my petition for review. First, I'll describe what I know Ms. Lawrence did and why it is a serious wrong. Then, I'll set out how I know this account is factual and how I can prove it.

Ms. Lawrence meddled with the clerk's reception of my petition for review of my motion to dismiss and interfered with its filing. Specifically, she advised the clerk to reject my filing based on a supposed lack of a proof of service. Then, she created the appearance of deficiency by substituting her unsigned proof of service for the clerk's signed one to engineer a filing delay. Ms. Lawrence falsified a court document because she knows my legal position is correct, and she fears the review department will agree.

Ms. Lawrence committed two grades of moral turpitude. To distinguish them helps in perceiving just how despicable is Ms. Lawrence's conduct. In discussing the matter with the clerk, Ms. Lawrence breached a rule of legal ethics prohibiting ex parte communication. Counsel should funnel argument designed to persuade the court through authorized channels to avoid unfair influence and decisions taken without hearing both sides. Ex parte communication was the subject of the fifth installment, where I claimed these proscribed interactions must be prevalent but immensely hard to prove. State Bar respondents have alleged that ex parte communications violated their due-process rights, but without denying that ex parte communications pose a due-process issue, the courts have been unpersuaded of the ethical infractions.

Ex parte communication potentially denies a respondent due process but is far exceeded in its vileness by the second grade of moral turpitude. Ms. Lawrence colluded with or manipulated the clerk to dispose of the actual signed proof of service and to represent her own copy as the one I tried to file. This is frankly criminal conduct, and my being subjected to it could lead to a "dismissal in the interest of justice." This escalation might convince the Hearing Department, on the other hand, to avoid immediate embarrassment before the Review Department by entering the default Lawrence seeks. The fraud and my response to it in several motions and oppositions should prove a crisis point in the case, where the court either withdraws all confidence from the prosecutrix or closes ranks with her.

How did this prosecutrix become first proven ex parte communicator among the Office of the Chief Trial Counsel's minions? The proof itself is simple. I know I sent out only a single unexecuted proof of service, and that was the proof of service to Ms. Lawrence. I sent the court signed proofs of service but served the opposing party an unsigned one. This is my routine practice, according with law and logic better than the common practice of signing them all.

Many lawyers are unaware of this fine and ordinarily useless point of procedure, and I earlier surmised that Ms. Lawrence is among them. They think you need to sign all of the proofs, and finding hers unsigned, Ms. Lawrence ran for joy to her friend in the clerk's office. She handed the clerk the document and said it must be rejected for want of signature. Lawrence emphasized the rejection should be sent out that day, as the clerk mailed the rejection the day Lawrence received her service copy. The clerk accepted Lawrence's document as identical to the documents filed, packed them off to me, and disposed of the others.

If I am wrong, the prosecutrix can easily so prove by producing her unsigned copy of the proof of service. If her copy is not the one that the clerk returned, then she will have retained it as her file copy. Having committed this deceit, she will instead produce a duplicate copy of the document the clerk returned, distinguishable because, though unsigned, the proof is hand-dated.

Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.


Anonymous said...

1. Standard practice is to sign the orignal proof of service, attach it the the orignal pleading, and then copy the pleading. So in the usual course of events, a signed POS is served on opposing counsel.

2. I don't really follow your logic on the so called "proof" here? You recall signing the orignal POS, so not only is the clerk who says you did not lying, this "proves" the Bar Prosecutor is her friend and conspired with her to screw you out of a petition for review?

3. Why would either the prosecutor or the clerk care about an obscure lawyer in one of hundreds of Bar cases? What is the motive to get you?

Stephen R. Diamond said...

1. Exactly. The more correct method is non-standard, because it is less efficient. Arguably, technical correctness isn't worth the loss of efficiency. My secretary makes that argument. In the order of events the signer attests to under penalty of perjury, however, the signer must mail the service copies before signing the proof. The standard method requires the signer, very technically speaking, to misrepresent her incomplete performance as complete at the time of signing.

2. What I recall or what the clerk claims to recall has nothing to do with the proof. The proof is that the prosecutrix is unable to produce the POS attached to her service copy of the petition. The only way the proof potentially depended on my recollection concerns the prosecutrix's service copy of the POS. If I had attached no proof of service to the prosecutrix's copy, then of course her inability to produce it would not prove her guilt. But the prosecutrix admits being served a copy with an unsigned proof of service. Yet in several filings in which she has denied my allegations and sworn they are false, she has never claimed to be in possession of the unsigned proof of service. She has ignored the actual offer of proof. Her failure to deny the specific allegation while addressing its conclusions amounts to an admission that she does not possess a copy of the proof of service.

I think you are conflating the reasons I knew the prosecutrix intermeddled with the proof. What I remembered and both my secretary and I carefully checked convinced me the prosecutrix had obstructed justice, because I knew I had mailed only one unsigned POS all told to anyone at the State Bar. When the clerk returned it to me, I knew what had happened. The proof, unlike my personal reasoning, doesn't invoke my recollections. If the prosecutrix did not give her copy of the proof of service to the clerk, then the prosecutrix would possess the proof of service and could refute my allegations by producing it.

3. They go after famous lawyers too, as told in the 30th Installment and the one coming up. But let's follow your logic. It is indeed implausible that the Bar would single me out for special dirty tricks. Yet in my case, tricks have provably been played. I conclude that these tricks are by no means unusual, but a regular part of State Bar proceedings. As your reaction shows, there is a counter-intuitive aspect to my proof, and my positioning to make proof depended on my non-standard habits and procedures, specifically, serving an unsigned proof of service to Deputy Trial Counsel Melanie J. Lawrence. Had I used standard procedure for service, I would be reduced to arguing my word against the clerk. How many respondent's are in that position? We don't know, but I don't think I am worthy of extraordinary State Bar methods.

Such fraud surprises me, but not a great deal, because from the beginning, it was obvious that the State Bar cheats. (5th Installment, for example.) I think the prosecutrix went further than her bosses wished, but where fair play is openly renounced, a standing invitation issues for a zealot to take the obstruction of justice one step further. The State Bar did not initially have it out for me any more than for anyone else similarly placed. I incurred the State Bar's enmity when I contested its claims as matters of law. That is unusual, as is winning in motion hearings against the Office of the Chief Trial Counsel. The State Bar almost always wins, and it does not tolerate losing. The issues I raise, moreover, threaten the status quo more than most. Finally, I intentionally provoked the irascible State Bar, to make its antisocial traits manifest. (See the 19th and 28th Installments.)