Tuesday, May 27, 2008

kanBARoo Court. 38th Installment. Extortion, State-Bar Style

A State Bar respondent usually receives first contact through State Bar Investigations. This division's investigations have received scant treatment here, because there is no case law governing their conduct. Well-established law makes credibility the sole determinant of the evidence's weight in the State Bar Court, and the courts do not rule on investigatory methods where they don't bear on its fruits' admissibility. (In re Gross (1983) 33 Cal.3d 561, 566-567 ["[O]nly such irregularities in the State Bar proceedings as reasonably can be seen to have resulted in unfairness to the attorney would cause us to disregard his misconduct disclosed thereby."])

The law's neglect of the State Bar's investigations affirms the wisdom of the U.S. Supreme Court's exclusionary rule, which makes evidence inadmissible in criminal court when collected in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments. Misconduct's irrelevance to State-Bar-Court admissibility has created an unregulated Investigations Division. Only exclusion deters collecting evidence in illegal ways, as the vast bulk of the case law governing search and seizure under the Fourth Amendment arises from the exclusionary rule.

The exclusionary rule probably applies to evidence collected by the Investigations Division in violation of the Fourth and Fourteenth Amendments. (See Dyson v. California State Personnel Board (1989) 213 Cal.App.3d 711.) But the exclusionary rule does not constrain State Bar investigations, because the State Bar doesn't usually do its own searches. (See Emslie v. State Bar (1974) 11Cal.3d 210, 229-230 [Evidence independently collected by the Nevada police admissible in the State Bar Court].)

The State Bar Investigator's favorite form of misconduct is extortion. Generously rewarded, apparently, for an accused Member's resignation, the non-attorney Investigators advise the Member on how resigning serves the Member's legal interest. Investigators harass Members by phone, reminding them to think about this option. A piece of blackmail gives rise to this urgent advice, as the Investigator has already concocted law to warn the Member of his probable criminal fraud conviction. The Investigator good-naturedly offers the Member hope, promising that his resignation stops the investigation. The fear that the Investigator so kindly offers to allay is founded on the Investigator's threat to convey the evidence to the Attorney General, if Member contests the charges.

Penal Code section 518 defines extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." The Investigator's threatening resignation-induction satisfies the "official act of a public officer" prong, because the Investigator demands the signed resignation of an attorney, an officer of the court. Penal Code section 519, subdivision 2, defines the fear-induction the preceding section prohibits to include "[accusing] the individual threatened ... of any crime." The Investigator's threats elicit fear by accusing the Member of criminal fraud.

The California Supreme Court holding that only the strength of the evidence before the State Bar Court matters perpetuates Investigators' criminal practices, such as extortion. These practices do not serve the interests of justice because they create a lawlessly capricious mindset among Investigators. The experience with the exclusionary rule shows that only excluding evidence illegally collected avoids its illegal collection. The State Bar Court should adopt specialized exclusionary rules to supplement the federal rule, so Investigators don't rely on extortion to coerce resignations.

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