kanBARoo Court. 47B Installment. The Logic of State Bar Proof-of-Service Fraud

Is faulty service standard-issue heavy artillery in the State Bar's arsenal or more like the atomic bomb, usable only in exigent circumstances? We can partly answer this question without direct evidence by comparing the forces constraining civil-practice attorneys and Bar counsel to serve documents faithfully. In civil practice serving the requests-for-admissions discovery tool poses the greatest temptation to cheat because of nonresponsiveness carrying a draconian consequence: a motion that all requests be deemed admitted, after which opposing party can usually obtain summary judgment. But even the most unethical attorneys don't falsely claim to serve requests for admission — except, perhaps, when their opponents are pro se non-attorneys — as a fraudulent win in civil court doesn't impart momentum comparable to a win in a State Bar matter. One reason, the waivers that Bar law imposes, in tandem with time pressure. When a State Bar respondent loses, the case continues at rapid clip, and respondent must either suffer default after refusing to participate or waive the rights respondent was asserting by motion or defending by opposition. Testing the State Bar's claims is too risky for most attorneys. The State Bar respondent's credibility deficit is another reason a fraudulently obtained State Bar victory carries advantages absent when a litigant commits extrinsic fraud in civil court. In a civil case if one attorney claims service and the other nonreceipt, the judge will accept the nonreceipt theory and assume loss in the mail, because the nonreceipt-theory's risk is smaller: unnecessary delay, not forfeiture.

Both realistic and doctrinal causes contribute to creating a different evidentiary balance for proving service in the State Bar Court. Realistically, many or most respondents are pro se and fighting for their professional lives, a predicament increasing their incentive to lie. Doctrinally, the tacit appearance-of-impropriety legal theory defines respondent as corrupt, lending little credence to respondent’s contentions when they contradict the State Bar's sworn declarations. State Bar respondents lack the leverage to contest fraudulent wins because their risks are too great or their courage too small. And they lack the credibility to garner more than half-hearted relief from setbacks due to unprovable service failure.

This analysis suggests that State-Bar-engineered service failures are more like heavy artillery than the atomic bomb. We should expect that fraudulent proof of service is common in State Bar Court, since extrinsic fraud is harder for a State Bar respondent to oppose than for a litigant in civil court. And if respondents often deny receipt of matter the State Bar claims it served, Bar counsel needn't fear injury to their reputation for truthfulness. The courts would anticipate that State Bar respondents will deny service, in already corrupt attorneys' desperate struggle for professional survival.

If so, the courts' anticipation rests on logical error. Their analysis doesn't follow the game-theoretic implications to their conclusion: where State Bar respondents are thought — accurately or not — to have a high propensity to lie, Bar counsel will lie with regularity. Although respondents may have the greater incentive to lie, Bar counsel have the lesser disincentive, since their honesty won't be questioned. The greater incentive of respondents thus creates the lesser disincentive for Bar counsel. Bar counsel's ability to lie with impunity renders State Bar proof-of-service fraud more common than many observers realize. Game theory, after all, is counter-intuitive.

To rectify, the State Bar's Rules of Procedure must contain stronger guarantees than provided by the Code of Civil Procedure. The State Bar Rules of Procedure should require the State Bar to prove service by certified mail. To the same end, service to the Office of the Chief Trial Counsel should be made through the Bar Court rather than by respondent, since the offices' proximity insures reliable, low-cost delivery.