Thursday, June 5, 2008

kanBARoo Court. 39th Installment. Delay

By manipulating delay unilaterally the State Bar usually gains a decisive unfair advantage, although fundamental fairness calls for respecting both sides' interest in resolving State Bar matters speedily. (See, for example, Patton v. Patton (1998) 973 S.W.2d 139, 150 [Duty to avoid unfair advantage in granting continuance].)The State Bar Court ignores respondents' interests.

The State Bar's ability to delay appellate review is an effective weapon against some respondents who base their defense on law. The advantage the State Bar obtains can be seen from my case's procedural posture, in which Supreme Court review of State Bar Court decisions is a two-stage process. Respondent first files a petition for review, setting out why the case is entitled to review under any of the four criteria that give the Supreme Court jurisdiction. The State Bar can file an opposition and the respondent a reply, all within a couple of weeks. The Supreme Court usually summarily denies these petitions, but if the Supreme Court decides that review is proper under statutory criteria, the case is then fully briefed, oral argument invited, and a written opinion published. Petitioning the California Supreme Court for review is the exclusive appellate option for a defaulted respondent. The process has been emasculated, where the court can reject a review petition without commentary. Unlike a petition for writ of mandate, the petition for review from the State Bar Court's recommendation requires—without any accountability mechanism—that the Supreme Court undertake an initial review. (See In re Rose (2000) 22 Cal.4th 430.)

Once the Member's right to practice is suspended, the State Bar Court goes into slow motion. Preventing the Member from practicing law completely satisfies the State Bar's putative mission to protect the public and the integrity of the legal system. Between entry of default in my case and filing the court's opinion in the State Bar Court, two months elapsed. Between the preparation of that opinion and its prospective filing with the Supreme Court, the two-month point arrives in a few days. As you would expect, the State Bar's dilatoriness is even worse when it loses. In the Benninghoff case, the State Bar took more than three months after the Court of Appeal's order to return illegally-confiscated federal-case files.

In the pretrial phase by contrast, the Office of Chief Trial Counsel curtails respondent's active litigation with incessant accusations that respondent uses delay tactics. The State Bar exploits its public-protection charge to justify its conveniently heightened pretrial concern with speedy process. The Bar misconstrues its putative mission as broadening its duties' scope by providing new imperatives unique to the State Bar system, a misconstrual absurdly implying that the criminal justice system does not act for public protection. The State Bar Court differs from the criminal justice system by its limitation to public and system protection. Punishment's absence from its disciplinary purposes does not excuse the State Bar's calculated haste.

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