Sunday, October 12, 2008

kanBARoo Court. 49th Installment. "Willfully" Made Precise

Some knowledge comes two ways: one involving knowing that and the other not; one can know some things by their name or by another: transparent knowledge, contrasted with opaque knowledge. The 42nd Installment interpreted the required knowledge for Business and Profession Code section 6103 willfulness as transparent because I’m unaware of any law using an opaque-reference standard. Here’s a better reason, with more exact conclusions.

I find no authorities making the connection, but the Penal Code defines the key word “willfully,” and the Penal Code definition decides whether transparent or opaque reference applies, the statute and the cases construing it being the only legal authorities addressing the knowledge that Bus. & Prof. Code, § 6103, willfullness requires. Penal Code section 7, subdivision 1, defines willfulness, when not otherwise defined by statute, as follows:
The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.
The first case People v. Honig (1996) 48 Cal.App.4th 289 examined Penal Code section 7-willfullness knowledge requirements, in a criminal conflict of interest case. The Honig court considered three alternative standards for knowledge of a contract held to expose a public official to a conflict of interest. The court rejected that willfully creating a conflict of interest required that defendant know that the acts were illegal. It is well-settled that knowledge of the existence of a law prohibiting the conduct isn’t ordinarily an element of a willful offense, this irrelevance being the substance of the popular rule, “Ignorance of the law is no excuse.” The Honig court also rejected the standard at the other, most inclusive, end of the spectrum. The defendant does not become culpable for willfully creating a conflict of interest merely because he knew the terms that created the conflict. The inclusive definition would make conflict of interest a kind of strict liability offense. The court accepted the third, intermediate, candidate: willfully creating a conflict of interest involved knowing that the contractual terms created a conflict of interest. The standard for willfully creating a conflict of interest requires knowing more than an objective description of the act and less than the illegality or even the harmfulness of the conduct. It requires transparent knowledge of the prohibited conduct in exactly the terms used by the violated statute. (Honig, supra, 48 Cal.App.4th 289 [including only the first two sentences of quote below; quoted In re Stonewall F. (1989) 208 Cal.App. 3d 1054.].) Stonewall F.’s explanation, fully quoted:
The section 7 definition is entirely dependent upon the act to which "wilfull" is appended. The required intent is an intent to do just that to which the term wilfull is applied. Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed. (See also Hall, General Principles of Criminal Law, supra, p. 142 ["It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end."]) (In re Stonewall F., supra, 208 Cal.App. 3d at p. 1066.)
The Business and Profession Code section 6103 language awaiting parsing with Penal Code- section 7-concepts reads:
A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.
The intent required to violate section 6103 is knowing that the order exists and that it requires doing or forbearing a particular act. Respondent's knowledge that the order required him to forbear is tantamount to knowing the order’s finality. Directly applying section 7 subdivision 1 to section 6103 violations corroborates the holding of In the Matter of Maloney (2005) 4 Cal. State Bar Ct. Rptr. 774, 787 that willfulness in violating an order requires respondent’s actually knowing it's final.

The other major case construing Penal Code section 7 willfulness People v. Garcia (2001) 25 Cal.4th 744 examined whether a sex offender’s violation of the mandatory registration laws was willful if the sex offender should have known the requirement, having received instruction and given acknowledgement. Garcia noted that the courts construe willfully, in appropriate statutory contexts, to include negligent or at least criminally negligent conduct. Garcia held that even criminally negligent conduct would not have satisfied the willfulness requirement. After reviewing cases involving willfulness without actual knowledge of the command disobeyed, the Garcia court concluded exceptions to the actual-knowledge requirement could apply only where the statutory violation consists of an affirmative act, as contrasts with an omission. (People v. Garcia, supra, 25 Cal.4th at p. 752 ["These cases generally involved affirmative acts, not a mere failure to act."].)

Section 6103 commands acts of obedience to court orders, and violating section 6103 involves failure to perform these acts of obedience. This comment on the statute’s grammar holds true, even if the order object of disobedience prohibits rather than commands action. The State Bar commits sleight of hand, typically skipping the grammar of the statute and analyzing the order’s grammar instead of the statute’s. Under Garcia, willfulness in failing to perform specific acts, such as obeying specific court orders, requires knowledge of what is commanded and that it is commanded. (Garcia, supra, at p. 752.)

3 comments:

Stephen R. Diamond said...

Hunter Watson kindly commented at http://tinyurl.com/6g55zr

> THIS VERSION OF THE ABOVE POST IS SLIGHTLY AMENDED FOR
> CLARITY
>
> On Oct 14, 2:43 pm, Hunter Watson wrote: On Oct 12, 11:44
> pm, stephen wrote:
>
> New KanBARoo Court - 49th Installment - "Willfulness"
> Made Precise
>
> http://kanbaroo.blogspot.com/2008
> /10/willfulness-made-precise.html srd
>
> On Oct 12, 11:44 pm, stephen wrote:
>
> New KanBARoo Court - 49th Installment - "Willfulness"
> Made Precise
>
> http://kanbaroo.blogspot.com/2008
> /10/willfulness-made-precise.html srd
>
> Stephen,
>
> I'm going to base this mostly on general experience and
> lawyerly instinct, not research in California law as I
> have little access to it and less inclination to learn
> it. I'll be delighted to be shown wrong.
>
> Preliminary observations:
>
> KanBARoo No. 49 addresses application of the
> "willfulness" provision in California's Business and
> Professional Code Section 6103.
>
> First, 6103 is written specifically to govern
> "attorneys". Joe Sixpack is not touched by it except
> implicitly as a victimized client. Accordingly, it could
> not have a more unique and specialized subject.
>
> I agree that 6103 is poorly drafted. Either of us could
> fix it in twenty minutes. I say, however, that the reason
> you find no appellate vindication of your willfulness
> issue is that lawyers and judges have had no difficulty
> understanding what it *must* mean and therefore haven't
> wasted time litigating it. Your struggle to make
> meaningful an analogy to a separate code, that of
> criminal procedure, in the context of your disciplinary
> case is doomed to fail.
>
> Here is the statute in its entirety:
>
> California Business And Professions Code Section 6103
>
> "A wilful disobedience or violation of an order of the
> court requiring him to do or forbear an act connected
> with or in the course of his profession, which he ought
> in good faith to do or forbear, and any violation of the
> oath taken by him, or of his duties as such attorney,
> constitute causes for disbarment or suspension."
>
> You say: "Section 6103 commands acts of obedience to
> court orders, and violating section 6103 involves failure
> to perform these acts of obedience."
>
> I believe this too inclusive and not correct because 6103
> contains three very different provisions. Unfortunately
> it consists of a single sentence sprinkled only with
> commas. Because of this bad drafting a question *seems*
> to be raised as to whether the element "willful" applies
> to anything beyond the "disobedience" of an order
> provision. Does it apply to violations of the oath and
> also to violations of the duties of an attorney which are
> set forth in elaborate Canons of Professional Conduct? I
> intuit and believe that it does not and can not. You may
> feel this is tangential but it is not. I can explain why
> I believe it is critical for you.
>
> Here I divide 6103 into its component parts for clarity:
>
> (1) "A wilful disobedience or violation of an order of
> the court requiring him to do or forbear an act connected
> with or in the course of his profession, which he ought
> in good faith to do or forbear,
>
> (2) and any violation of the oath taken by him,
>
> (3) or of his duties as such attorney,
>
> constitute causes for disbarment or suspension."
>
> As to No. 1, there can be no violation of a court order
> addressed to an attorney which is not served according to
> the rules AND of which he has no actual knowledge. This
> is not controversial. It is an elementary application of
> the notice principle. How it applies to your case I do
> not know and leave to you to explain. If you do we can
> discuss it further. That context should have been
> outlined in No. 49. You will have no readers at all if
> they have to read the previous 48 to understand
> elementary matters of context for No. 49.
>
> I think you should also address whether a specific order
> is even needed for a default suspension when the rules of
> procedure must cover the obligation to answer and join
> the issues with elaborated admissions or denials.
>
> In any event I will argue that the notice provision does
> not apply to violations of the oath or the duties of
> lawyers generally, Nos. 2 and 3 above. That is important
> because you are suspended without date. You will never be
> reinstated unless you apply for it. At that point the
> multi-count grievance against you will have to be dealt
> with first and the "willfulness" provision will not apply
> to those allegations. They have nothing to do with
> violation of explicit court orders. Nos. 2 and 3 must be
> essentially "strict liability" matters tempered by causal
> questions, damages and sentencing discretion.
>
> I believe that I can explain the "strict liability"
> issue. Shall we go on?
>
> I don't mind if you put these things on KanBARoo too, but
> I'd rather write it here because it will be read by
> people who know me.

Hi Hunter,

Feel free to repost anywhere you want, Hunter. That way, each of us can be clear about our intended audiences.

This Installment doesn't concern my case. I've discussed other cases (Benninghoff, Fine, and Clinton)and legal issues unrelated to any specific case. Installment 49 and its predecessor on the same topic is offered as a discussion of a general question of law relevant to many State Bar cases, those involving violations of court order. The ideas grew from consultation on other respondents' cases, where I have used the general argument of the 49th Installment, in a fact-specific manner. The final arguments I made for myself, unsuccessfully, are in Installment 43, "Petition for Writ of Review" and in the subsequent motions.

The argument in the 49th Installment supplements the primary argument based directly on State Bar law. This supplementary argument is usually more suitable for a Reply Brief than for an Opening Brief in a violation-of-court-order case. It certainly doesn't contradict the State Bar case law, confirms the case law's interpretation of § 6103 and resolves an equivocation in applying it. The appellate State Bar Court, styled "Review Department," has stated the governing standard but has never provided an account of its origin, never presented an argument for its construal. The standard Penal Code definition isn't cited but produces the Review Department's result, in the same terms. To me it's clear the Review Department based its construal of willfully on the Penal Code, without seeing fit to enlighten anyone on how it reached its conclusion. This failure to provide an analytic connection, from the record or authority to conclusions, is a general complaint I've heard from attorneys who consult me. The 49th Installment mainly helps attorneys get a firm, exact grasp of the willfulness concept in State Bar law, so they can argue State Bar law more confidently. The meaning of willfully is often debated in State Bar court, but not in those terms, because State Bar law itself provides little machinery with which to argue meaning.

The broad scope of "wilful" in §6103 is settled law.

You write "there can be no violation of a court order addressed to an attorney which is not served according to the rules AND which he has no actual knowledge." Of course, this correctly states the law, but it states the law because it corresponds to the definition of a willful violation. The State Bar typically avoids pleading any specific facts showing willfulness. Your correct formula is also often question begging in State Bar cases. Yes, you have to have actual notice, but how much do you have to know to be deemed to have actual notice?

The laws governing the finality of injunctions, for example, are rather abstruse. I venture to say most California lawyers don't know them. An order is final, even if appealed, when the order is prohibitory. But a notice of appeal stays an executory order. Most lawyers don't know this rule, and those who do, cannot reliably distinguish the two kinds of orders.

Hypothetical. An attorney receives second-hand reports that confirm that an injunction has issued and that it has been appealed. He believes the appeal stayed the injunction, which he thinks he is entitled to disobey because of the appeal. Or the attorney knows only executory orders are stayed, but misclassifies the subject one. The result should be the attorney is not culpable for willfully violating a court order. Do you agree? The State Bar Court would find culpability, because the attorney knew of the final order; but the attorney didn't know that the order was final. Applying the Penal Code, as explained by case law, shows why the law requires knowledge that: the 49th Installment's "transparent" knowledge.

Looking forward to your future comments, particularly concerning one of the key State Bar Court issues, strict liability.

Anonymous said...

I found this site using [url=http://google.com]google.com[/url] And i want to thank you for your work. You have done really very good site. Great work, great site! Thank you!

Sorry for offtopic

Anonymous said...

Who knows where to download XRumer 5.0 Palladium?
Help, please. All recommend this program to effectively advertise on the Internet, this is the best program!