Friday, August 22, 2008

kanBARoo Court. 47A Installment. More Dirty Tricks from the State Bar

To avoid losing, how far will the California State Bar go? Recent happenings suggest that the limits haven't been plumbed. The State Bar's malign reach extends to the California Supreme Court Clerk's Office, ordinarily a model of propriety. My filing of a petition for writ of review was not perfect in every sub-technical respect, but whereas filings with the State Bar are problem-laden every step of the way, filing with the Supreme Court was fast and always is unproblematic, as the civil procedure remained until the State Bar got into the act. The Supreme Court Clerk's Office filed the State Bar's answer three days late, without obtaining permission of the court as required. Initially, I intended to ignore this improper filing, an accommodation that would have been a mistake and a deviation from my anti-waiver strategy. One grows weary of these procedural battles, and I looked forward to calmly writing a reply and, I hoped, a supplemental petitioner's brief, after the Supreme Court accepted review. This Pollyannaish perspective denied the reality that litigation against the State Bar is procedural to the end, because the State Bar refuses to play by its own rules. When I discovered the State Bar not only filed its answer late but also served the answer improperly, I came to my senses and filed a motion to strike respondent's answer. (See 47th Installment.)

How worried should the State Bar be? First, let's look at the procedures governing a petition for writ of review and what I have recently learned relevant to the petition's prospects. Formally, a petition for writ of review initiates a two-stage process. After the first round of briefs, culminating in petitioner's reply brief, the Supreme Court may grant review, after which the court invites respondent to file a more extensive supplementary brief, followed by a more extensive brief by petitioner. Which stage poses the greatest hurdle? The answer is a stage that doesn't explicitly exist, the first stage mentioned above really being the second, and the second described above, the third in practice. The Supreme Court may, and usually does, dismiss the petition before the State Bar files an answer, because the court deems that the petitioner has not established a prima facie case. I think early dismissal is the fate of the overwhelming majority of such petitions; Richard Fine's extremely detailed and extensive petition is an example. (See Justice Kennard's dissent in In re Rose (2000) 22 Cal.4th 430, discussed at the 30C Installment.) The State Bar delays filing its answer until the last moment, hoping and expecting that the Supreme Court, as usual, will reject the petition sua sponte at the end of the actual first stage. The delay avoids the labor of drafting the answer, and more importantly, allows the State Bar to avoid committing itself to new legal or factual positions. The State Bar's answer is only minimally important, normally, because the petitioner either will have established a prima facie case or have failed to establish one. In a case like mine, mostly raising questions of law, even the final phase is not apt to be telling, because the relevant facts are immediately available from the record.

Twenty days after I served the petition, when it became apparent the Supreme Court, not having dismissed my petition, believed I established a prima facie case, the State Bar had good reason for worry. The process really contains three hurdles, the first and most important one now surmounted. The State Bar was on course to lose in the Supreme Court, a fate not exactly but almost unprecedented, as I have found two ancient State Bar cases where the Supreme Court granted a complete dismissal in the interest of justice. The State Bar cannot afford to lose a single case today. Its tacit doctrines of strict ethical liability and mere appearance of impropriety--with guilt assumed in practice upon the State Bar's bringing charges--depends on the State Bar's infallibility, not as to all the charges, not as to the appropriate level of discipline, but definitely as to existence of culpability.

I don't know what the State Bar argued in its answer, but the State Bar desperately wanted to avoid having this petitioner file a reply, a reply due on very short notice, 10 days after the State Bar deposits its answer in the U.S. mail. The State Bar first tried to misdirect the answer to another attorney's address. When the Supreme Court clerks caught the mistake and informed the State Bar, it served its answer to my previous address, against its own Rules of Procedure, rule 61(b), and the California Rules of Court, rule 9.13(f). The Supreme Court's Clerk's Office did not, as customary, record its initial rejection on its docket, an omission I consider mildly collusive, and I suspect the State Bar omitted any actual mailing on its second try, because mailed to the previous address, only ten miles away, the answer would still have arrived long ago. With luck, the State Bar might have enjoyed my ignorance of its submission and filing until the court actually rendered a Bar-favorable decision. At that point, I could challenge the service, but I would have to attack a decision already made. Not only would the momentum favor the State Bar, but it could reasonably hope I would be so fed up I wouldn't bother.

No comments: