kanBARoo Court. 27th Installment. Should the mere appearance of impropriety constitute an ethical infraction?

If the State Bar is competent only to smell smoke and presume fire, the Supreme Court may tolerate the Bar's incompetence because under the prevailing concept of legal ethics the appearance of impropriety constitutes an ethical infraction. Under Canon 9 of the American Bar Association Model Code of Professional Responsibility, "A lawyer should avoid even the appearance of professional impropriety." Canon 9 is persuasive in California but not the law, and the most searching analyses have delivered withering criticism. The California Court of Appeal held:

[T]he appearance of impropriety test is no more than "a simple and soulful rubric that seems to make intuitive sense' but whose alluring charms 'are only surface.' [Citation.] … [I]t is unclear as to whom the conduct in question must appear improper. Some courts think it is 'the public' or an 'average layman." … Still other courts believe the opinion of "the bar" is a relevant consideration. ... Even if there were no conflict as to whom the conduct of an attorney must appear improper, judges lack the empirical data necessary to accurately discern the views of the appropriate group…. "[C]ourts lack both access to reliable facts and a workable method for thinking through, on a case by case basis, the question whether the particular result sought by one or the other of the parties will increase, decrease, or leave unaffected the general level of public or client confidence. [Citation.]" (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 307.)

The apparent-impropriety concept remains influential, as shown by the dissenting opinion the cited case bears, as well as another California case that criticized the position quoted because the opinion:

[F]ocuses attention on the end result of the challenged conduct without including the paramount concern of preserving public trust in the scrupulous administration of justice and the integrity of the judicial proceedings." (In re Complex Asbestos Litigation (1991) 232 Cal.App. 572, 591-592.)

While all courts agree on the importance of preserving public trust in the courts and attorneys, they have not overcome the Gregori court's epistemic objections. It is reasonable to assume that preventing actual improprieties will favorably affect the public's perception of the law, but no reason has been provided for thinking that preventing perceived improprieties helps, absent actual improprieties. There is reason to think such attempts to prevent merely perceived improprieties backfire, because a perceived-but-not-actual impropriety banned by law or rule is also a limitation on clients' freedom to receive legal services on their terms, imposed without clients receiving offsetting benefit. Client interests are sacrificed for the system and profession's intended good.

The appearance of impropriety is even more dangerous as concept than rule. It serves as a misleading justification, hiding real significance, sometimes concealing important strengths, sometimes deficiencies. The apparent-impropriety rationale conceals, for example, the real purpose of rules against former-client conflicts of interest, a good rule, capable of rigorous and principled justification, as explained by the Supreme Court:

Clients are entitled to vigorous and determined representation by counsel. It is difficult to believe that a counsel who scrupulously attempts to avoid the revelation of former client confidences--i.e., who makes every effort to steer clear of the danger zone--can offer the kind of undivided loyalty that a client has every right to expect and that our legal system demands. Rule 5 operates to preclude any impediment to the fulfillment of an attorney's professional obligation to his client by proscribing any conflict of interest in his representation of past and present clients. (Anderson v. Eaton (1930) 211 Cal. 113, 117.)

Yet, this sound justification is muddied by the immediately following comment:

It is better to remain on safe and secure professional ground, to the end that the ancient and honored profession of the law and its representatives may not be brought into disrepute." (Ibid.)

Ask lawyers about justifying the rules concerning past-client conflict of interest, and you will get back appearance of impropriety. No one will remember the real analysis presented by the Anderson court. Yet lawyers must know how to draw the line correctly, because every court in California agrees that the appearance of impropriety alone is insufficient.

That is, every court except the California State Bar Court. Without acknowledging it, the Bar Court's procedures derive from the apparent-impropriety rule, because only such a rule could justify the superficial basis for charges, a basis that proves only the appearance of impropriety. Only the appearance-of-impropriety rule can explain the widespread assumption that if an attorney is charged, he must be guilty. The Enforcement Division of the State Bar has won this presumption of guilt by tautology rather than demonstration. If the appearance of impropriety is itself impropriety, as ABA Canon 9 demands, then charged is tantamount to guilt. (See also, 46th Installment, "Origins of the Appearance-of-Impropriety Concept.")

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
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kanBARoo Court. 26th Installment. Why is the NDC Unanswerable?

As argument for the upcoming California Supreme Court appeal, my earlier petition to the Review Department of the California State Bar Court suffers by omitting the most persuasive argument: the due-process violation inherent in requiring complete responses to ambiguous statements. The Review Department petition underplayed the practical ramifications of the notice of disciplinary charge’s (NDC's) failure to state disciplinable charges, and it limited practical discussion to mentioning the State Bar's habit of launching undisciplined investigatory "fishing expeditions" based on these improperly drawn opening pleadings. It overestimated the significance of fishing expeditions to a review court considering charges against a lawyer. The ease of adding new charges and the other procedures making undisciplined fishing expeditions threatening to justice demonstrate a public policy unworried about subjecting charged lawyers to these procedures.

This readiness to attach blame upon the Chief Trial Counsel’s issuing charges stems from the subject of the next Installment, legal ethics holding attorneys culpable for the mere appearance of impropriety. Consider the position of the Supreme Court, dedicated to this ethic and believing that the existing State Bar is better than nothing. When the Chief Trial Counsel's office can do no more than see smoke and presume fire, to require definite charges would keep this State Bar from opening a case. The Supreme Court prefers retaining this police function, even at privacy’s expense. Although undisciplined fishing expedition could find all attorneys commit rule violations, the point in itself is unprovable and legally almost irrelevant.

Avoiding undisciplined fishing expeditions primarily implicates the California Constitution's protection of privacy interests, a weaker interest than due process. The oppressive practice of requiring complete answers to ambiguous questions, on the other hand, directly violates due process. (See Commonwealth v. Lambert (2000) 765 A.2d 306 [“[w]hen an affirmative answer is exacted from a witness to a line of questioning loaded with assumptions favoring only the inquisitor, the leading question becomes not a tool of truth but of advocacy and intimidation”]) It is both strength and weakness of this case as a candidate for Supreme Court review that the most important violation of due process is unique to State Bar proceedings because of the expanded role of the initial pleadings, which also serve as interrogatories by requiring complete answers. Contrast the notice of disciplinary charges with the civil complaint and written interrogatories, another method of gathering civil-case information. A civil defendant must answer a verified complaint with specific agreement or denial but, unlike a respondent answering the notice of disciplinary charges:

• Need not provide a complete response or new facts; and
• Can demur to an ambiguous pleading, even if it states a cause of action.

A civil defendant confronted with an ambiguous interrogatory can:

• Object to the question; or
• Impose a reasonable restricted meaning and answer.

An example. The NDC’s paragraphs 19 and 21, count one reads:

Respondent willfully violated Rules of Professional conduct, rule 4-100(b)(1), by failing to notify a client promptly of the receipt of the client's funds, securities, or other properties, as follows . . . By not informing Yoo of the receipt of the medical payment from Infinity, or the Yoo settlement from Farmer's, Respondent failed to notify a client promptly of the receipt of the client's funds, securities, or other properties.

I could straightforwardly deny such an item appearing on a verified civil complaint. If one part of several is false, their conjunction is false, and no requirement of completeness intervenes. If such an item occurred embedded in a written interrogatory or request for admission under penalty of perjury, I could object to the question as ambiguous and refuse to answer. What do I say when answering the notice of disciplinary charges?

1. I deny Yoo was my client, as Kim and his accomplices handled the case secretly, elaborately concealing their criminal acts.
2. I deny any notice or constructive notice of the receipt of the funds.
3. I lack sufficient knowledge to affirm or deny that Kim failed to inform Yoo of the receipt of funds.

At least those points should be noted to comply with the requirement of providing a complete factual response to the allegations. The ambiguities in the charge prevent me from providing a simple, unequivocal answer and, in that way, prevent me from clearly stating my position. Such questions are designed to muddy the respondent's position by requiring the respondent to make numerous artificial distinctions, which the State Bar can distort in presentation to a busy court. (See People v. Crenshaw (1966) 241 Cal.App.2d 289, 296 [unwisdom of defendants’ propensity to "give answers to 'loaded' questions which subsequently may be reported in such a manner that they may appear to constitute evidence of their guilt"])

As it requires complete answers under oath, the Supreme Court should mandate special demurrers. Fortunately, a respondent can often reach these defects based on their failure to state a disciplinable charge. The pleading requirements for stating disciplinable charges preclude the most patent ambiguities by requiring ultimate facts and explanations connecting infractions with rules or statutes. Since these allegations fail to state disciplinable charges, moving for dismissal is a respondent's only rational response.

-----------------------

Notice of New Posting Schedule

To prepare for the Supreme Court, these Installments will become more analytical, hence more time-consuming to prepare. Consequently, I shall be posting Installments at least twice per week instead of three times per week.

kanBARoo Court. 25th Installment. Petition for Review

The following document is my only major unposted document, left behind because the court clerk notified me of its rejection for filing. Weeks later, I received notice that the Review Department had denied the petition. The petition for review summarizes the arguments provided in both the original motion to dismiss and the motion to reconsider the denial of the motion to dismiss, although those pleadings present each of the arguments more thoroughly. In the next installment, I will analyze the weaknesses of this petition.

-------------------------------
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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) 366-7920
Facsimile: (866) 392-4866
In Pro Per

The State Bar Court

REVIEW Department - Los Angeles

: :

Introduction

The matter in the Hearing Department is a disciplinary action, entitled “In the Matter of Stephen R. Diamond, No. 183617, A Member of the State Bar.” Petitioner is respondent in the action. The hearing Department of the California State Bar Court has exercised its judicial function in connection with the action described above. The petition arises from the State Bar Court's failure to dismiss the Notice of Disciplinary Charges in the proceeding.

Petition

By this verified petition, petitioner Stephen R. Diamond alleges:

1. On July 9, 2007 the California State Bar filed the Notice of Disciplinary Charges in the above-entitled action. A true and correct copy of that notice is attached as Ex. ‘A.’

2. Respondent filed a Motion to Dismiss the Notice of Disciplinary Charges. A true and correct copy of the Motion to Dismiss the Notice of Disciplinary Charges is attached as Ex. ‘B.’

3. The State Bar Court filed its Opposition to the Motion to Dismiss Disciplinary Charges; a true and correct copy is attached as Ex. ‘C.”

4. The State Bar Court Hearing Department on August 17, 2007 filed and served a denial of the Motion to Dismiss the Disciplinary Charges; a true and correct copy is attached as Ex. ‘D.’

5. Respondent filed a Motion to Reconsider the Denial of the Motion To Dismiss the Notice of Disciplinary Charges; a true and correct copy is attached as Ex. ‘E.’

6. The State Bar Court Hearing Department on November 5, 2007 denied Respondent's Motion to Reconsider the Denial of the Motion To Dismiss the Notice of Disciplinary Charges. A true and correct copy of the order is attached as Ex. ‘F.’

7. The State Bar’s Office of the Chief Trial Counsel on September 12, 2007 served of deposition on respondent; a true and correct copy is attached as Ex. ‘G.’

8. The Deputy Trial Counsel refused on October 23, 2007to continue respondent’s deposition, leading to the State Bar's Motion to Compel Deposition, filed on October 25, 2007 and respondent's opposition to the State Bar's Motion to Compel Deposition, filed on October 22, 2007. The State Bar’s Motion to Compel the Deposition is attached as Ex. ‘H.’ Respondent’s opposition to the State Bar’s Motion to Compel Deposition is attached as Ex. ‘I.’

9. The Hearing Department granted the State Bar’s motion to compel respondent’s deposition, but postponed the discovery until respondent’s answer to the NDC fell due.

10. The issue raised as to whether a Notice of Disciplinary Charges can escape a Motion to Dismiss the NDC is an issue of widespread importance in State Bar cases; the issue potentially affects every respondent.

11. Respondent will suffer irreparable harm if the Notice of Disciplinary Charges is not dismissed through summary review. The only procedural protection Respondent has in State Bar Court is by review. If the State Bar is permitted to proceed, it will be gaining entitlement to invade privacy rights in exercising broad-ranging discovery rights, without having first stated a lawful and disciplinable charge as a predicate to that invasion.

Stay of Proceedings

Respondent has applied to the hearing judge, the Hon. Richard Honn, for a general stay.

Prayer

That the Review Department reverse the Hearing Department’s denial of respondent’s Motion to Dismiss the Notice of Disciplinary Charges.

Executed on November 26, 2007 in Joshua Tree, San Bernardino County, California.

I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct.

__________________________________

Stephen R. Diamond, declarant

Points & Authorities

1. Procedural prerequisites

Respondent requests interlocutory review under Rules of Procedure, rule 300 of the Hearing Department's denial of respondent's motion to dismiss the Notice of Disciplinary Charges. Respondent further requests that this interlocutory review be undertaken as a summary review, as the matter qualifies under the terms of Rules of Procedure, rule 308.

A. Time for filing. (Rule 300(b).)

Respondent has filed a motion to permit late filing. (See Rules Proc. rule 64(a).) Filing a motion for reconsideration extends the time to file a request for review. The Hearing Deparment denied the motion for reconsideration on November 5, 2007. The petition for review was due November 26, 2007.

B. Interlocutory review (Rule 300.)— Issues not remediable after trial. (Rule 300(a).)

This issue is one not remediable after trial, because the inquiries not authorized absent lawful charges would take place without their support. In other words, the charges would license a fishing expedition, completely unconstrained by noticed charges. Based on the Supreme Court opinions discussed at page 5, line 18 to page 6, line 8 of this document, the Office of the Chief Trial Counsel might plead many other cases in the conclusory fashion this case illustrates.

(1) Importance

Although not a necessary criterion for review by the Review Department of the State Bar Court, the importance of the issue raised would merit review under such a criterion and heightens the importance of providing the review procedure. The issue potentially affects every respondent appearing before the State Bar. I see little reason to think my position extraordinary, because if conclusory allegations are tolerated, nothing would prohibit their flourishing.

C. Summary review (Rule 308.)-- Pure question of law

The sufficiency of the Notice of Disciplinary Charges is reviewed as a matter of law. The question concerns sufficiency of the notice of disciplinary charges, assuming the truth of facts alleged. The only communication received from the court concerning the adequacy of the notice of disciplinary charges was in writing. No argument was conducted orally on the subject.

2. Issues

Under the Rules of Procedure, as interpreted in the Baker v. State Bar line of Supreme Court cases, Rule 101 and Rule 262 work in tandem to determine whether a notice of disciplinary charges survives a motion to dismiss. (See Baker v. State Bar (1989) 49 Cal.3d 804, 816.)

A. More is required than showing that the facts, if proven, would constitute a disciplinable offense. (See Ex. D, p. 1, where the Hearing Department errs in a matter of law. (Rules Proc., rule 224(b)(2).)

Rule (101)(b)(3) requires relating the facts to the laws violated. The trial court denied respondent’s motion to dismiss because “the facts alleged in the NDC, if proven, would constitute disciplinable offenses.” To state a disciplinable offense, does alleging facts amounting to some offense meet the standard requiring the NDC state the infraction-statute relationship?

B. The notice of disciplinary charges must plead ultimate facts, in accordance with general California pleading requirements.

Rule (101)(b)(2) requires pleading facts constituting the cause of action, which means, pleading ultimate facts. Can the State Bar's pleading survive a motion to dismiss, when it pleads only evidentiary facts and legal conclusions?

3. Argument

A. 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, supra, 49 Cal.3d at p. 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.

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 NDC as a whole.

B. The Notice of Disciplinary charges must plead ultimate facts.

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 State Bar Court Rules of Procedure themselves, linking that code section to the practice of ultimate fact-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.

4. Conclusion

Due process considerations aside, the NDC as a document is exceedingly sloppy. The State Bar fails even to number the counts consecutively, with the consequence that counts 50 to 58 appear in the NDC twice. Whatever its reasons, the Office of the Chief Trial Counsel has gratuitiously multiplied the likelihood of confusion.

Respondent has requested a general stay in the Hearing Department. The case satisfies the requirements for interlocutory review and summary review.

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.

END DOCUMENT
____________________

Best to understand this blog:

• Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
• Make liberal use of hyperlinks; and then
• Follow your interests; or
• Follow the case.
  

kanBARoo Court. 24th Installment. What next?

To formulate a legal strategy, I had to determine whether I was dealing with a court, and, if so, from where emanated its jurisprudential imperatives. If the State Bar Court extinguished due process and not merely denied it, my arguments would be self-defeating, leaving “cooperation” with the State Bar the only viable tactic — meaning admit guilt, express remorse, and settle the case by stipulation. This conclusion would vindicate the State Bar defense establishment's method, at cost of vitiating the enterprise’s purported ethical significance.

The Hearing Department’s response to my motions posed a test, in which the prosecutrix screamed that my motions were frivolous, but the court never agreed. Although the Hearing Department was a court, it wasn't much of one. When the Hearing Department offered reasoning in support of decisions, the reasoning failed to take account of any of my arguments except as it misconstrued them. Yet the Hearing Department declined to hold my arguments frivolous and on two occasions granted my motions in substance.

Someone was watching the Hearing Department, but who? Only two possibilities lay in the Hearing Department’s chain of command: the State Bar Court Review Department and the California Supreme Court. The court building's architecture augured that the only honest review would come from the Supreme Court and portended that the Review Department functioned as much a part of an integrated State Bar as the Office of the Chief Trial Counsel and the Hearing Department, but the laws of group dynamics gave some hope that the Review Department and Hearing Department might split. The Review Department’s participation in the conspiracy, its joining the Hearing Department in kowtowing to the Chief Trial Counsel, was proven only when the Review Department's clerk conspired with the prosecutrix to falsify my petition to the Review Department, followed by the Review Department's issuing its denial on the merits, these events timed to occur on the eve of the Hearing Department's OSC. The conspiring Review Department clerk had previously refused to file the papers and announced she had destroyed them.

With the Hearing Department’s entry of my default, I have two options: 1) petition the Review Department to overturn the entry of default and failing that petition the California Supreme Court for review of the Review Department's decision; or 2) wait until the Bar Court enters its final judgment and then petition the Supreme Court for review. I can go immediately to the Review Department and from there to the Supreme Court; or I can go directly to the Supreme Court but only after waiting for the final judgment from the State Bar Court. Cases are rare in which a respondent goes directly to the California Supreme Court, skipping the Review Department. Nobody wants to wait for the announcement that the Bar Court proposes disbarment before challenging the decision.

My anti-waiver strategy compels waiting. Waiting for final judgment carries another advantage when a respondent challenges the notice of disciplinary charges, in opening up an additional basis for appeal, one still more compelling because the entry of default has draconian consequences that turn against the State Bar when it botches the notice of disciplinary charges. When the court orders entry of default, it deems admitted all facts alleged in the notice of disciplinary charges. The protections compare unfavorably with civil defendants against whom the court clerk has entered default. Defaulting civil defendants don't forfeit the presumption of non-liability, and the plaintiff must still prove a case, often to more exacting standards. Legal conclusions are not deemed admitted, even in the State Bar Court. Since the notice alleges scant facts, any judgment will become attackable as based on deeming legal conclusions admitted. The ambiguities in the NDC that made it unanswerable for me are at least equally unresolvable by the State Bar Court.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

kanBARoo Court. 23rd Installment. The Symbiosis between the State Bar and Inept Lawyers

The best legal theory for ostensibly defrauded persons conflicts with the State Bar’s approach to my case, but the State Bar’s infectious routinism infiltrates the general practice of law, depositing a vast gangrenous layer of ineptitude. Accordingly, the incompetent State Bar agrees with some inept lawyers in accepting the settlement agreement's lawfulness, despite Kim’s transgressions. Such incompetent lawyers work in symbiosis with the State Bar to obfuscate their failure to represent their clients.

Properly serving these defrauded persons’ interests requires a slightly creative application of the law of agency. The legal theory is that the insurer’s right and duty to send payments to my office depends on the existence of an attorney-client relationship between me and the insured, and the lack of such relationship gives defrauded persons the right to rescind their settlement agreement. Since no lawyer represented defrauded persons, one of the conditions precedent implied by law into the settlement agreement fails. It fails because an unlawful contract is void, as is the underpinning legal services contract between office manager Kim and defrauded persons. Because of extrinsic fraud, defrauded persons didn’t get a fair shot at negotiating their damages. Defrauded-persons’ attorneys could have placed the burden of financial loss on the insurance company.

In the case of a defrauded persons’ attorney, Scott A. Meyers, Esq., both self-interest and incompetence drove his failure to advance his clients’ interests. Meyers represents two distinct ostensibly defrauded persons, the first, personal injury claimants, and the second, a chiropractor claiming a lien on a defrauded person’s settlement. If Meyers had proceeded on the voided-settlement legal theory, his chiropractor could state no present claim, since a contingent-payment agreement governed the chiropractor's remuneration. This conflict between the clients is not the end of Meyers's misconduct. Lawyers lack patience for delaying recovery until some subsequent attorney of record can reap the reward, occasioning a second conflict of interest, this time between the personal injury claimants and Meyers personally.

How often do lawyers of Meyers’s ilk sabotage their clients’ interests, even without Meyers’s conflict of interest? The State Bar doctrinal line, in which accused lawyers must couch their mitigating remorse, is strict ethical liability for the acts of one’s staff, implying formation of an attorney-client contract despite subterfuge. Many lawyers without Meyers's corrupt tendencies will embrace this line, by osmosis and from wariness to undermine their own remorseful expressions, should their error or the State Bar’s caprice require.
Best to understand this blog:

• Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
• Make liberal use of hyperlinks; and then
• Follow your interests; or
• Follow the case.
  

kanBARoo Court. Interlude 3. More Answers to Questions

The following exchange recently occurred at http://tinyurl.com/yse2sq


On Jan 6, 6:10 pm, "David L. Martel" (italics)

Stephen,

You use the term "entry of default" in your post. Did you fail to show
for the hearing where you lost the privilege to practice law? If you failed
to show for the hearing can you appeal your "inactivation"?

Yes. My grounds are now such as would warrant even further appeal beyond the California Supreme Court, should that be necessary. (http://kanbaroo.blogspot.com/2008/01/kanbaroo-court-22nd-installment-can-you.html)

If you can and do win an appeal,
won't you just end up back at the State Bar facing the same charges? See:
http://kanbaroo.blogspot.com/2007/12/kanbaroo-court-18th-installment....
(The part about judicial decision making by the Office of the Chief Trial Counsel and its implications for due process, when prejudicial corruption is proven in that office.)

Sorry, all your strange notions and dilatory motions don't seem to add
up to a strategy unless your former clients are elderly and moribund.

You cannot honestly claim to *know* this, when you ask the question preceding. My tactics, moreover, are not dilatory.

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

Bear in mind that successful tactics in State Bar will look very different from successful tactics elsewhere in law. For one thing, almost no respondent ever prevails at the State Bar Court. The playing field is far from level. The State Bar defense establishment plays at law while applying inapplicable generic tactics to the State Bar Court, producing a miserable record of failures.
While my tactics are not intended to delay, delay is indeed a byproduct, and holding off the State Bar Court for a half year in itself is a tactical accomplishment. A *mark* of a successful strategy, however, not its goal.

I would imagine your disgruntled clients will now consider
seeking redress for their damages.

Not even the State Bar alleges that I committed fraud. I have never been contacted by the Attorney General's Office or the police. Kim, the perpetrator of the fraud, apparently was arrested about a year ago. It looks like a plea bargain occurred. If clients wanted to sue, they should have done so before the statute of limitations expired, and I invited them to do so whenever they subsequently contacted me, informing them they might have a colorable civil action for negligent supervision. None did, for negligent supervision, legal malpractice, fraud, or anything else, because they would have actually had to prove their allegations under proper rules of evidence in such an action. I do not believe they would even show up for the State Bar Court hearing on the merits, had it occurred. They have too much to hide and would not hold up on cross- examination. Information about these ostensibly defrauded individuals, who were NEVER my clients, can be found at:
http://kanbaroo.blogspot.com/2007/10/kanbaroo-court-3rd-installment-c...

Both you and your former firm may be sued.
Were you insured when this mess occured? Is the AG
still investigating? Does it seem likely that you will face criminal
prosecution for this scheme that occured at the firm.

At least I'd be in a real court. But very unlikely. No evidence of fraud by me has been presented or even so claimed by anyone. Not that the State Bar Investigators didn't try. They initially believed I had perpertrated a massive fraud. They were first frustrated they couldn't prove it, then resigned to my actual non-involvement, probably after the perpetrator, Kim, gave his police statement. Their demand that I be disbarred was framed on the assumption I had committed fraud. But the State Bar never gives up a position without losing a tenacious fight, and not even then. Nothing changed in their recommendations after they drastically revised their assessment of my role.

Good luck

Let's not be hypocritical. You grant all the Bar's assumptions, including that defrauded persons were my clients. You would have to be depraved to wish me good luck.

ADDED January 9, 2007, same thread:

On Tue, 08 Jan 2008 16:25:40 -0800, David L. Martel

wrote:
> If, as you say, you get a de novo trial I don't see any reason to assume
> that the Supremes will like you or your case any more than the lower
> court.They'll examine the evidence on it's merits.

Interpreted one way, that is a ridiculous comment. Interpreted another, it is what makes me think you are convinced my case is ill-founded. And if so, your "good luck" would indeed be hypocritical. If you disagree, we are making different value judgments about the weight of social propriety versus sincerity. I suspect yours falls considerably "right" of the norm and mine to the "left," and a middle of the roader would characterize _each_ of us as sophomoric. But then, this is a newsgroup, not a court. I think I understand the corresponding proprieties, but you may not.

Anyway, back to your ridiculous comment - or simply uninformed, in which case I apologize in advance. Have you not understood that this judge has refused even to comment on evidence of criminal conduct by the Deputy Trial Counsel (DTC)? That it has become clear that the judge is in truth collaborating with the DTC, and that the Review Department is in on it? Have you not surmised that this whole Bar Court business is a gigantic sham, that I'm not the first respondent that is a victim of these acts of fraud, but it is a regular practice in the State Bar, endorsed by the judges and unchallenged by respondents, because they lacked either the courage, the proof, or usually both?

If that message hasn't gotten through to even a casual blog reader like yourself, then I have been grossly ineffective in presenting the case. My response to that feedback would not be to conclude that I should get representation but that I should get out of law. If I cannot even make my own position clear, I have no business doing what I'm attempting or even being in the profession. On the other hand, if you understood the case but simply believe that the judge is acting in good faith, then I definitely disagree that social convention excuses hypocrisy of that degree. Again, a value judgment, but not a mere application of social formalities. If I condemn the DTC as a criminal obstructor of justice and the judge as her accomplice, and you think they are right--at least procedurally--wishing me luck is excessively inauthentic. Ultimately, however, this is a matter of taste.

There is another possibility, that I'm right about the judge but you are still right about the Supreme Court. That would mean that this form of corruption is tolerated at the highest level in the State. Then my success would depend partly on having the resources to take the case to the federal level. But it would also depend on whether I had any wish to remain an attorney and work under the tyranny of a corrupt State Bar, where the state's Supreme Court looks the other way.

Stephen Diamond
http://kanBARoo.blogspot.com

PS. It isn't a de novo *trial*. There has been NO trial. I will be
petitioning for review of the *order* for the clerk to enter default.

---------------

This might provide some additional sense for why I insist on handling the case my way. Quite apart from any personal significance, this case, as I've developed it, *tests* the integrity of the system. My curiosity is too great _not_ to see what happens.

(The fact is, you, David, are curious too. But you are conflicted between curiosity and morality.)

Stephen Diamond
http://kanBARoo.blogspot.com

kanBARoo Court. 22nd Installment. Can you tell victory from defeat?

Notice of entry of default was served on me yesterday, a result almost all correspondents, including some sympathetic and smart lawyers, consider a legal disaster. In similar vein, sympathetic readers criticize this blog as self-defeatingly defiant. They attribute entry of default to this defiance — correctly, now that I know the harsh result's antecedents. For the first time, prosecutrix Melanie J. Lawrence — the evening before the OSC hearing — downloaded my blog. Lawrence read the installments systematically from first to last, spending three to five minutes per installment. Adding to the data tracking the prosecutrix, her chief witness, Scott A. Meyers, Esq., read my blog the next day for more than an hour.

These events accomplish my tactical purpose, ignored by critics, their analytic blind spots my expository shortcomings. I may be partly forgiven because enemy anticipation allows some tactics less effect. The hidden tactic plays to an adversary's irrationalities, a well-known principle of warfare originating with Sun Tzu, who said if the enemy is quick to anger, provoke him. I learned the State Bar was quick to anger after I responded to State Bar Investigator Thomas Layton's advice to resign by informing him he had engaged in the unauthorized practice of law. The State Bar is accustomed to malleable respondents expressing actual guilt or feigned remorse, and frustrating the State Bar's expectations provokes its wrath. Sun Tzu's insight inspired me to shower the State Bar with provocative writings.

Another undermentioned strategic premise concerns probable source of relief, unlikely from any quarter below the California Supreme Court, destination of my notice of the NDC's insufficiency. Prevailing on that issue wouldn't end the case, as might the review portending, since the leading issue has changed to wrongful entry of default, a favorable change this sequence shows:

1. I move for an immediate stay and reconsideration of the Order to Show Case (OSC).
 

I mail this motion personally to the judge, including proof that Lawrence twice perpetrated fraud on the court and might continue her criminal misconduct.

2. The State Bar moves for sanctions, entry of default; it opposes my motion for reconsideration and request for a stay.

In its papers, the State Bar complains about my "waging a campaign against DTC Lawrence," but it admits that Lawrence received an unsigned proof of service. Lawrence fails to state that she can produce it, proving my allegations by the omissions rule.

3. I don't file oppositions to the State Bar's motions.
 

I contend the judge violated my federal and state due process rights by not acting against fraud and that I can't rely on the clerk's office while disputing its reliability. On the facts presented, moreover, the court is unjustified in concluding that I failed to file the motions, because it is as likely that oppositions were subjected to tampering after their actual reception by the State Bar Court clerk. The judge ignored this obvious likelihood.

4. The Review Department denies my petition for review in formulaic terms, while first granting my motion for relief for late filing.
 

Entitled to apply for a stay, I was denied this opportunity because the Review Department didn't inform me it was considering the papers, and instead of mailing a notice of filing, the court clerk mailed a rejection for filing, informing my secretary of the papers' disposal.

5. The judge orders the clerk to enter my default for not answering the notice of disciplinary charges, putting me out of court in the Hearing Department and Review Department.
 

The judge denies my motion for reconsideration of the OSC and request for a stay — at the OSC itself, weeks after I made them. While the main basis for the stay and the reconsideration concerned the criminal misconduct of Deputy Trial Counsel Lawrence, the Court doesn't mention these allegations in its orders and announces no findings of fact. The Hearing Department doesn't want me to take these facts to the Supreme Court. These oppressive, irascible bureaucrats were provoked by my blog — newly discovered on the eve of the OSC —allowing me to build a petition for review on denial of due process of 5th-and-14th-Amendment proportion, Supervising Judge Honn participating in the coverup.