Monday, January 21, 2008

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)

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In Pro Per

The State Bar Court

REVIEW Department - Los Angeles




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.


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.


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.



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.


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