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.

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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.