Wednesday, January 16, 2008

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.

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