Tuesday, December 11, 2007

kanBARoo Court. Interlude 2. Discussion is better than monologue

Discussion of State Bar Court in relation to general prosecutorial misconduct.


Published here with permission:

(My original comments are prefaced by '>>.' jl's comments are prefaced by '>.' My response to jl's comments have no preface.)

>>On Dec 10, 2:52 am, Stephen wrote: I have posted before about my personal
>>State Bar discipline case. Bluntly put, I charged that the State Bar
>>showed its incompetence and its dishonesty in manipulating its already
>>flawed procedural rules. The question crossed my mind, how far is the Bar
>>willing to go? Will it do anything to win? I didn't doubt the Bar's will,
>>but I did doubt its power, since ultimately, the Bar Court is subject to
>>review by the California Supreme Court. On the other hand, given the
>>power to do whatever it needed to win, it did not occur to me that its
>>incompetence might get in the way, even of winning by some form of

> Do you have an absolute right of review or merely a right to petition
> for a writ of certiorari?

The right to a review by the Review Department of the State Bar Court is absolute. The Review Department's decision is reviewable only by certiorari to the California Supreme Court The review for which I filed was thus of right.

The Review Department and the Hearing Department, however, are both part of an integrated State Bar Court. The intermeddling clerk was acting for the Review Department, but sits in the same office with the Hearing Department clerks, even possibly sharing work.

> I have seen appellate courts crawl up trees backwards to avoid cert,
> despite official transcripts and records glaring with reversible
> error.

>>One never knows everything in advance. The State Bar has resorted to a
>>trick far cruder than I imagined it prepared to try. And it might be so
>>incompetent as to get caught in the process. The State Bar has
>>inadvertently provided me with proof of its dishonesty. The State Bar
>>trial counsel did nothing less than doctor court files to cause a
>>responsive pleading I tried to file to be rejected on technical grounds.
>>By substituting papers and destroying papers, it caused the clerk to
>>claim that I had filed a document without a proof of service and had
>>filed 4 copies instead of five. For these alleged sins, it rejected the
>>filing and destroyed all the documents I had sent to the clerk, putting
>>me in default and potentially out of court. Although the penalties it
>>tries to impose through the clerk's office are unlawful, that is far from
>>the most shocking aspect, because I can prove that to get this result,
>>the Deputy Trial Counsel had to substitute her own document version for
>>the one I sent to the clerk. This moreover is EASY TO PROVE. It boils
>>down to this simple question: Can the Deputy Trial Counsel produce a copy
>>her copy of the proof of service? How do I know whether it is or isn't
>>her copy? Each copy I sent out, whether signed or not, was dated by hand
>>in ink. You, readers, have little reason to take my word for what I can
>>prove. But you can wonder, why would I make an accusation that can so
>>easily be _disproven_ if untrue. Although my blog receives ample hits, no
>>one has commented. This confuses me. Isn't it obviously a matter of
>>import if the State Bar, that is charged with rooting out unethical
>>conduct, resorts to conduct not only unethical but frankly criminal? How
>>can this not have a tremendously bad affect on the whole practice of law,
>>affecting everyone in the end? Comments of any kind help me tremendously
>>in figuring things out. Please consider commenting at my latest
>>installment, which contains the actual motion I filed opposing the entry
>>of default that the State Bar engineered. The latest installment is
>>located at:

>> http://kanbaroo.blogspot.com/2007/12/kanbaroo-court-installment-15-pr...
>> srd

> It looks as though, if you have proof, your opponent should herself be
> brought up before the bar.

Thank you for pointing this out. Of course, I know the offense is an ethical infraction, but I had not thought of actually filing a complaint with the State Bar.

What had occurred to me is filing a police report. While I now write briefs in all areas of law, my direct legal experience is limited to civil matters -- primarily in business litigation, with focus on breach of contract, and in personal injury. I don't know about the effectiveness of a police report in this matter.

A police report matter arose in another context. The events leading to the Bar's inquisition comprised a fraud conducted from my office, involving persons unknown to me, with whom I had not formed an attorney-client relationship. The defrauded were Korean-speaking persons, and the defrauders were Korean-speaking staff, who conversed among themselves in their native language. The State Bar argues that I should have reported the fraud to the police. This seemed a futile act, because I was not the direct victim of the fraud, and I lacked the evidence, which was in the hands of unknown defrauded persons.

In the present Bar fraud, I have the proof of service that I mailed to the offending Deputy Trial Counsel, but the main evidence is the prospective failure of that attorney to produce her copy of that document, that is, to produce an unsigned but hand-dated proof of service. Someone must request that she produce the document and inspect its date to determine that it is a reproduction. Who will undertake this investigation and perform it with integrity? Can the Presiding Judge of the State Bar Court be counted on first to undertake the investigation and then to make an honest report? It would be fairly easy, with perhaps limited potential repercussions, for an investigator falsely to report finding an original in Deputy Trial Counsel's possession. To make that determination, the investigator has to run a finger over the date, making a judgment, although an easy one that clerks perform routinely.

The likelihood of proper investigation depends on whether Deputy Trial Counsel acted independently. Did the Presiding Judge covertly instruct her to intermeddle? My blog recounts evidence of ex parte communication between the two. I lean toward thinking that the judge was in on it. Perhaps his permission was more general, and he might not have countenanced counsel's method, but only because he is smarter than she is, not necessarily more ethical. The Bar Court in practice is a closely integrated institution.

> It reminds me of Shakespeare's remark in _Measure for Measure_ where
> the jury "passing on the prisoner's life, may in the sworn twelve have
> a thief or two guiltier than him they try."

The Bar Court's offense here is no doubt more serious than any of mine, even as alleged. My actual offense would properly sound in general negligence in civil court. If the fraud were shown the result of my negligent supervision, one could argue that staff's fraud is a reasonably foreseeable consequence. It is not properly a matter of legal malpractice, since I formed no attorney-client relationship with the persons defrauded. Any negligence would be a violation of my general duty to use reasonable care to prevent injury, a duty having nothing specifically to do with the practice of law.

> We have found in our state that the official bar has been an
> employment repository for the inept and for scoundrels. Because of
> media pressure and the influence of wealthy parents our bar snatched
> the license of DA Mike Nifong, but sat inert and did nothing in even
> more alarming cases where corrupt prosecutors committed felonies to
> obtain murder convictions. Alan Gell was almost executed because of
> affirmative corruption by two prosecutors who barely got their wrists
> slapped by the bar.
> Scott Brewer and Kenneth Honeycutt were prosecutors who committed
> felonies to win a death row conviction of Jonathan Hoffman. Hoffman
> was later exonerated when it was discovered that the prosecutors hid
> from the defense, judge, and jury the lavish gifts they had bestowed
> on prosecution witnesses.

> The bar never touched these two corrupt prosecutors. The NC State Bar
> waited until the statute of limitations ran, and now those two
> scoundrels are untouchable. One of them even became a district court
> judge, and other one is still practicing law.
> The older I got and the more I practiced law, the more I saw it was
> politics, not law, that ruled the courthouses. You could call it the
> law of the jungle. And the politics of the courthouses are the black
> arts of malice, party loyalties, and faction. That's likely what you
> have to deal with.

I find an interesting question in the extent to which State Bar-enforcement problems reflect general problems with prosecution, exacerbated by the Bar's lesser competence, or on the other hand, represent a driving force.

May I have your permission to publish this discussion to my blog? Often discussion is more clarifying than monologue.

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