kanBARoo Court. 17th Installment. Original Motion to Dismiss

This is a copy of my Motion to Dismiss based on pleading insufficiencies. Potential customers can consider it a work sample. [Firefox, Opera, and Safari show formatting better than Internet Explorer.]

____________________________________

Stephen R. Diamond (State Bar No: 183617)

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In Pro Per

The State Bar Court

Hearing Department - Los Angeles

Table of Contents

1. Charges predicated on aiding and abetting wrongful conduct uniformly fail to allege that respondent knew his staff’s specific unlawful purpose. [Pertains to Counts 1-26, 28.] ...........................................................................6

A. To charge aiding and abetting the unlawful practice of law, the State Bar must allege that respondent knew Kim and Shin's specific wrongful purpose. [Pertains to Count 1.] ........................................................................................ 6

(1) A person aids and abets only when he acts with
knowledge of
the wronful purpose of the perpetrator.
[Pertains to Count
1].......................................................................6

(2) The NDC fails to satisfy
the Bar Court’s Rules of Procedure, rule 101 (b)(2), pleading “facts
constituting the alleged violations,” which means pleading ultimate facts.
[Pertains to Count
1.].....................................................................7

B. Where the NDC states or implies that respondent willfully acted through J. B. Kim or his colleagues, the predicate that respondent aided or abetted Kim remains unpleaded. [Pertains to Count 1-26, 28.]........................................................................... 8

2. Count 27, formation of a partnership with a non-lawyer, employs an invalid definition of “partnership.”
[Pertains to Count 27.]......................................................................................9

3. All charges predicated on an attorney's duty to clients fail to demonstrate the formation of an attorney-client relationship with Defrauded Persons.
[Pertains to Counts 1 - 26.]...............................................................................9

Table of Authorities

Cases

B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823........................................................ 7

Chambers v. Kay (2002) 29 Cal.4th 142............................................................................. 9

Committee on Children's Television Inc. v. General Foods Corp.(1983) 35 Cal.3d 197. 7

Fox v. Pollack (1986) 181 Cal.App.3d 954....................................................................... 10

Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861............................................ 10

People v. Beeman (1984) 35 Cal.3d 547............................................................................ 6

People v. Coria (1999) 21 Cal.4th 868............................................................................. 11

People v. Tillotson (2007) __Cal.App.4^th__........................................................................ 6

Statutes

Code Civ. Proc., § 425.10, subd. (a)(1)............................................................................... 7

Rules

Rules of Procedure, rule 101 (b)(2)...................................................................................... 7

Rules of Professional Conduct, rule 1-310......................................................................... 4

Statement of the Case

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

Respondent’s favorable bargaining position allowed respondent to negotiate these terms. Kim wanted to remain in the business of law-office support, where Kim had 15 years of experience and public service awards in helping deliver legal services to the Korean community. Kim’s crisis arose when the attorney who had employed him, James Chu, Esq., decided to exit the practice of law.[1] Respondent’s willingness to accept minimal remuneration also enhanced his bargaining position. Respondent received $5,000 per month.

Kim’s acts of frank criminality undermined any pristine test of the legal services delivery system, as Kim ensnared some eight Korean immigrants and one non-Korean (“Defrauded Persons,” hereafter), who allowed or suffered the unlawful prosecution of their lawsuits by non-attorneys, who received no supervision on these secret cases. Kim conspired with respondent’s staff to keep Kim’s criminal conduct secret. Having stolen their right to representation by a lawyer, Kim then proceeded to rob these Defrauded Persons’ money.

Kim, Shin, and colleagues plotted undetected by respondent by using their native language for office communication. Respondent--relying on his clients to report any complaints, problems, or anomalies--thought the absence of client complaints verified the operation’s correctitude [2] and did not entertain the possibility that each and every employee would cooperate in keeping Kim’s operation secret. Kim had only recently hired most of the staff, whom Kim and respondent instructed on respondent’s ultimate authority. When respondent finally received a complaint from Scott Meyers, Esq., despite the fraudulent and extortionate character of Meyers’s demands, respondent immediately investigated. Finding he could not rely on his staff, respondent promptly closed his office.

Argument

The dispositive questions in this case are questions of fact about respondent’s knowledge of wrongdoing and questions of law about respondent’s duties. The faults in pleading the Notice of Disciplinary Charges (NDC) obstruct direct attack, because the State Bar creates a form of strict ethical liability for all transgressions conducted out of the attorney's office or involving the use of his trust account. The NDC shows no regard for the state of the attorney’s actual knowledge of the unlawful conduct, except to assert that respondent’s violations were "willful." The Bar’s theory and logic are that the events happened, therefore respondent allowed them to happen; therefore he aided and abetted Kim and Shin’s thievery.

1. Charges predicated on aiding and abetting wrongful conduct uniformly fail to allege that respondent knew his staff’s specific unlawful purpose.
[Pertains to Counts 1-26, 28.]

The complaint consists of 26 counts involving approximately nine Defrauded Persons and two general counts. Count 1, aiding and abetting the unauthorized practice of law in the Nan Young Yoo case, is the most explicit and provides a model for the others, whose assumptions are not clearly stated. The pleading of aiding and abetting the unlawful practice of law suffers from the same defect of the others containing an aiding and abetting predicate, as most do, although in form suppressed, perhaps disguised.

A. To charge aiding and abetting the unlawful practice of law, the State Bar must allege that respondent knew Kim and Shin's specific wrongful purpose.
[Pertains to Count 1.]

(1) A person aids and abets only when he acts with knowledge of the wrongful purpose of the perpetrator.

A common defect in California pleading involves substituting a combination of legal conclusions combined with evidentiary facts for the ultimate facts required under California procedural law. Partly because of this unartful pleading, the complaint fails to allege directly all the necessary components for disciplinable offenses involving aiding and abetting.

A person aids and abets when he or she, (1) acting with knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Tillotson (2007) __Cal.App.4^th__; People v. Beeman (1984) 35 Cal.3d 547, 561.)

Aiding and abetting requires knowledge of the unlawful purpose of the perpetrator. The knowledge required is knowledge of the specific unlawful purpose, not knowledge of the mere intent to engage in some unlawful conduct. (People v. Beeman, supra, 35 Cal.3d at p. 560.) The NDC alleges neither.

(2) The NDC fails to satisfy the Bar Court Rules of Procedure, rule 101 (b)(2), pleading “facts constituting the alleged violations,” which means pleading ultimate facts.
[Pertains to all Counts.]

The pleading of ultimate facts derives from Code of Civil Procedure, which calls for "[a] statement of the facts constituting the cause of action in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1). [emphasis added]; Committee on Children's Television Inc. v. General Foods Corp.(1983) 35 Cal.3d 197, 212.)]” The facts pleaded are ultimate in the sense that they constitute the cause of action.

The Bar Court’s Rules of Procedure, rule 101 (b)(2), requires that the NDC “Contain a statement of facts constituting the alleged violations.” (Ibid. [emphasis added].) The use of the term “constituting,” identical to the term appearing in Code of Civil Procedure section 425.10, subdivision (a)(1), proves that the drafters intended that the NDC plead ultimate facts. This is the language in the Rules themselves, linking that code section to the practice of ultimate pleading. (See Committee on Children’s Television, Inc. v. General Foods Corp. , supra, 35 Cal.3d at p. 212.)

B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823 illustrates the requirement for pleading ultimate facts. B.L.M filed for negligent misrepresentation, among other claims, against the law firm Sabo & Deitsch. The complaint alleged that Sabo & Deitsch, charged with responsibility for the legal work to implement a city building project, negligently represented that the project could go ahead because particular favorable regulatory conditions prevailed. Yet despite the clear evidentiary link between the conduct alleged and the cause of action pleaded, the court sustained Sabo & Deitsch’s demurrer that the complaint failed to allege that BLM reasonably relied on Sabo & Deitsch. The complaint did not directly allege reasonable reliance as an ultimate fact.

Evidentiary facts, by contrast, are facts that the plaintiff would use to prove the charge. Paragraph 9 states the legal conclusion that respondent aided and abetted the unauthorized practice of law. Paragraphs 10 to 18 of the NDC allege various illegal acts of respondent’s staff, acts constituting the illegal practice of law by staff members. No doubt the Bar intends to use these facts to prove respondent engaged in the illegal practice of law. The Bar may even believe that such evidence proves clearly and convincingly that respondent had engaged in aiding and abetting the illegal practice of law. Regardless, the paragraphs contain only the chaff recitations of evidentiary facts bereft of the wheat, ultimate fact. The State Bar nowhere alleges that respondent knew of the occurrence of the illegal acts charged or the existence of Defrauded Persons’ cases.

B. Where the NDC states or implies that respondent willfully acted through J. B. Kim or his colleagues, the predicate that respondent aided or abetted Kim remains unpleaded.
[Pertains to Count 1-26, 28.]

Each case’s remaining charges imply an aiding and abetting predicate. In their present form, moreover, these other counts contradict the charge for aiding and abetting the unauthorized practice of law, as the allegations supporting the unauthorized practice charge admit that Kim handled the checks. Respondent could not have willfully failed to notify client of the receipt of the funds, since he lacked knowledge of their receipt. The unstated predicate is that respondent aided Kim’s evading the immediate disclosure requirement. An aider and abettor shares equal guilt with the principal, and in substance this charge attempts to allege that respondent aided and abetted Kim in this purpose. To allege aiding and abetting, the Bar must allege that respondent knew Kim’s intent to withhold information about receipt of funds.

The same argument applies to the counts Failure to Maintain Client Funds in Trust Account, Failure to Respond to Client Inquiries, Failure to Inform Client of Significant Development, and Failure to Release File. The State Bar alleges willful violation of the Rules of Professional Conduct, and as such, the charges must involve at least a level of culpability equal to the principal. Particularly since the NDC as a whole admits that respondent was not the principal in these transgressions, the NDC must support charges of willful violation with allegations that respondent knew Kim intended to commit these specific transgressions.

Since these willful acts bottom charges of moral turpitude, the facts pleaded fail in sufficiency to state a charge for moral turpitude.

2. Count 27, formation of a partnership with a non-lawyer, employs an invalid definition of “partnership.” [Pertains to Count 27.]

Only Count twenty-seven breaks the pattern of alleging aiding and abetting offenses without alleging ultimate facts in support. [3] The Bar has not properly alleged the formation of a partnership.

Defining “partnership” in the context of another provision of the Rules of Professional Conduct, the Supreme Court stated, "Generally, a partnership connotes co-ownership in partnership property, with a sharing in the profits and losses of a continuing business. [Citation.] (Chambers v. Kay (2002) 29 Cal.4th 142, 151.) None of the alleged facts in Count twenty-seven indicates sharing of profits and losses or co-ownership. The facts alleged, if supported by substantial evidence, would undoubtedly constitute an alleged wrongdoing of such magnitude that if proven should warrant summary disbarment, but the offense is not the formation of a partnership!

3. All counts predicated on an attorney’s duty to clients fail to demonstrate the formation of an attorney-client relationship with Defrauded Persons. [Pertains to Counts 1-26.]

Characterizing a Defrauded Person receiving bogus legal services from Kim as a “client” is not a fact but a legal conclusion, because a person’s status as a client depends completely upon the formation of an attorney-client relationship. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 [“To state the obvious, an attorney's duty to his or her client depends on the existence of an attorney-client relationship. If that relationship does not exist, the fiduciary duty to a client does not arise.”]) Contract creates this relationship (id. at p. 960) [4], and contract interpretation poses questions of law. (Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861, 865.) The NDC avers the legal conclusion that the Defrauded Persons had formed an attorney-client relationship, but pleads no ultimate facts so demonstrating. The NDC, for example, alleges that Defrauded Persons retained respondent through Kim, but pleads no facts showing that respondent ratified any of the unlawful contracts for pseudo-legal services that Kim offered and Defrauded Persons accepted.

Paragraph 10, for example, states, “Nan Young Yoo employed Respondent, through Kim and staff at the Wilshire Blvd. office, to represent her in a personal injury matter arising out of a January 1, 2005 injury.” While it adequately appears that Yoo met with Kim, who represented that he had authority to accept the case, the NDC pleads no facts to demonstrate Kim actually enjoyed this authority. [5]

Conclusion

The failure to plead facts demonstrating that respondent aided and abetted Kim and Shin’s fraud and the failure to plead facts demonstrating that respondent formed an attorney-client relationship with Defrauded Persons reflect the unwillingness of the State Bar even to contemplate the mens rea of the alleged offenses or their application to this case. (See People v. Coria (1999) 21 Cal.4th 868, 876 [“So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.”] The court should require the State Bar to:

• State the ultimate facts the State Bar must prove;
• Tailor the counts to the facts the State Bar thinks it has probable cause
  to assert: OR
• Dismiss this action.

Dated: ______

By:	Legal Research & Writing Service Supplier of Legal Theories

Stephen R. Diamond

Declaration Supporting Motion to Dismiss

1. I, Stephen R. Diamond, am the respondent in these actions and a Member of the California State Bar.
2. All statements contained in the Statement of the Case are true, as based either on respondent’s personal knowledge or sources of information and belief that respondent knows are reliable.
3. I declare on penalty of perjury under the laws of the State of California that the foregoing declaration is true and correct.

Executed in Los Angeles, California on August 5, 2007.

__________________________________

Stephen R. Diamond, Declarant

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[1]Kim and staff did not work for respondent full time, as they continued to contract with Chu to wind down his office and help him close his case. Respondent's investigation of Kim's misconduct in respondent's office triggered Chu's concern. Chu discovered embezzlement of funds totaling some $30,000.

[2]Most clients lacked knowledge of English, but they knew a translator was readily available for their communication with respondent.

[3]The final Count twenty-eight returns to the pattern by alleging “permitting misuse.” The Bar appears often to use the word “permitting” to achieve the force of aiding and abetting without pleading respondent’s knowledge of the specific wrongful intent.

[4]“Except for those situations where an attorney is appointed by the court, the attorney-client relationship is created by some form of contract, express or implied, formal or informal. [Citation.]”

[5The face of the pleading further reveals that Yoo was put on notice that no contract with an attorney had actually been formed since the NDC admits that Yoo did not receive a retainer agreement signed by respondent, and Yoo knew that Kim was not a lawyer. She never communicated with respondent about her case until after non-lawyers settled the case. Could she have been ignorant that Kim was running a fraud?