Installment 64C. The State Bar Court gets even more illogical

(4^th in Philip E. Kay series)

The State Bar Court's Hearing Department has in fact narrowed — to a single issue of statutory interpretation — the issues on entering Kay's default and striking Kay's answer in reprisal for Kay's refusal to retake the witness stand. The State Bar claims entitlement under State Bar Rules of Procedure rule 201 to enter Kay's default for the refusal. Rule 201(b)(3) states:

If a respondent fails to appear as a party at the trial when that respondent's default had not previously been entered in the proceeding, then the Court shall order the Clerk to enter that respondent's default if the respondent has not appeared at trial.

The Order of June 17 encapsulates the State Bar's notion that testifying is part of "appearing" under rule 201:

Imposing sanctions for a party's failure to comply with a notice to appear at trial to testify is not a novel issue. ... Our rules of procedure therefore expressly provide for the imposition of sanctions for a party's failure to comply with a notice to attend trial to testify.

The narrow issue is: does a respondent fail to "appear at trial" when he refuses to retake the witness stand? Since this narrow issue has become dispositive, it deserves deep analysis, despite apparent triviality. I provide a skeletal textual analysis here.

Black's Law Dictionary's definition of "appearance" expands on the English dictionary definition, "coming formally before the court":

A coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court. The voluntary submission to the court's jurisdiction.

In civil actions the parties do not normally actually appear in person, but rather through their attorneys (who enter their appearance by filing written pleadings, or a formal written entry of appearance). Also, at many stages of criminal proceedings, particularly involving minor offenses, the defendant's attorney appears on his behalf.

Although "appearance" is used for a spectrum of acts from accepting the court's jurisdiction to coming to the courtroom on a specific matter, the common thread throughout these related meanings includes the notion an appearance is a kind of act that can ordinarily be performed equally by a party or his attorney; this meaning excludes testifying. Testifying isn't part of "appearing" because a party can ordinarily "appear" by counsel.

Usage in the State Bar's Rules of Procedure corresponds, as rule 210 shows:

The respondent has an obligation to appear at trial unless default has been entered and has not been vacated. The respondent may appear through counsel rather than in person, unless the respondent is properly served with a trial subpoena or notice to appear at trial.

An appearance is a kind of act that an attorney can perform for a party. Hence, "appearance" would change its meaning within the same set of rules if the term included testimony when applied to a party. Consider what happens if a party's attorney is called to testify in his client's case, and the attorney refuses. The client has appeared by attorney, and the client's appearance is unaffected by the attorney's refusal. Since the client can appear by attorney or in person, the party's refusal to testify doesn't negate his having appeared. Otherwise, "appear" would mean to attend and testify when applied to a party appearing in person and would mean merely to attend when applied to a party acting through attorney. Consistency requires construing "appearance" as merely attending. "Appearance" doesn't include testifying.

Philip Kay should prevail on his motion. Let's hope he raises the right arguments and doesn't bog down in discussion of legislative history. Sometimes we must move in a direction opposite to that suggested by Oliver Wendell Holmes Jr. when he remarked that experience plays a bigger role in law than logic. The key issue in the Kay matter has become one of textual interpretation, and logic will rule.

Interlude 11: Drexel and the DAs

Chief Trial Counsel Scott J. Drexel's removal has so demoralized the California State Bar bureaucracy that its trial counsel have succumbed to temptation to do the unthinkable: debate a former respondent. The discussion was at Crime and Federalism, a proprosecutorial blog, which bemoaned Drexel's firing. To start toward the end with comments by a current state-bar respondent, an elderly and disabled attorney, who describes his ordeal before the State Bar:

Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish. I know enough from experience the Drexel marching order is a "take no prisoners" operation that justifies its inquisition by parroting "We're protecting the public." Anybody critical of Scott Drexel must be opposed to protecting the public. Right? Drexel's M.O. has been to squander millions in building an empire devoted to destroying the sole practitioner, preferably elderly and disabled,while the big firm lawyers only find their licenses lifted due to federal court convictions. Do not believe the State Bar prosecution press releases as they are strictly public relation promotions like the above.

Attorney William Wells later added:

Further to the Scott Drexel playbook. During a continued trial I sufferred multiple fractures from a fall that required surgical repairs, hospitalization and bed confinement so I obtained a Declaration from a physician aware of these facts and filed it with a motion to continue in the routine manner in such events. Unknown to me, the Deputy trial counsel Erin M. Joyce secretly issued a subpoena for the personal appearance in court of my physcian over a two week span and caused a week of stalking, trespassing and harassment by a State Bar Investigator of my physcian at his home, office and hospital. Despite no personal service, Erin Joyce, trial counsel, caused to be prepared a false Declaration of personal service that only surfaced when a Motion to Quash was filed by my physcian and disclosed that the Declaration of Service was on its face totally illegal. The court agreed and granted the Motion to Quash but no sanctions or attorney fees and no redress by a tort action for abuse of process. If I need a Declaration from my physcian what would be your response? and his response? Who could blame him? This is an example of Nifong-Drexel protecting the public. [My emphasis, for legal significance.]

My only disagreement with poster William Wells is: "Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish." To the contrary, I think readers can appreciate the thuggish mentality of the State Bar simply by reading its contributions to the discussion. The State Bar communicates with telltale signature rhetoric, immediately conveying how it views its function.

The first commenter was a former State Bar prosecutor who recycles his public relations blurb for Drexel. His boilerplate included this observation: "Not one of the cases I brought to trial resulted in a finding of no culpability." This half-truth is the standard argument for Drexel's project of public posting from a case's inception, and I pointed out that the relevant statistic — even if you trust the Bar Court to provide the criterion — is the percentage of charges dismissed with prejudice, since public posting accuses the attorney of the full set of charges. The Bar Court dismisses the majority of charges!

Normally, the State Bar wouldn't compromise its arrogance or risk exposing its bad motives and poor competence by intervening in a public discussion. The State Bar is so unused to contention that it can't state a rational argument. Instead of dealing with my point about the dismissal with prejudice of most charges, never answered, the at-the-time-anonymous poster referred readers to my State Bar member record; nothing more except to put "position" when referring to "Mr. Diamond's position" in scare quotes.

Back to my quibble with William Wells concerning the need for first-hand experience to appreciate the State Bar's oppressiveness. From the ad hominem method of obfuscation alone, one could already surmise much. The signature use of scare quotes in place of arguments sufficed to categorize the poster as a bar prosecutor. When he replied to my response, which pointed out his refusal to identify himself while attacking me personally, he compromised and signed with his first name, "Patrick": my old friend Supervising Trial Counsel Patrick O'Brien. O'Brien was in charge of my case at the beginning. After he made some intemperate remarks, such as alerting me that he would report my refusal to comment orally as an admission, he transferred the case to our prosecutrix, Melanie J. Lawrence. Apparently the bar thought the case needed a "woman's" touch. [Scare-quote irony intended.]

Apart from these hints to William Wells and others on how to detect oppression at a glance, I want to deal with one other question the Crime & Federalism article raises concerning the Drexel removal: Drexel's prosecution of several San Diego deputy district attorneys. District attorneys usually avoid any bar investigation, but the reason isn't that the bar is reluctant to prosecute district attorneys. The judges, through California's Chief Justice of the Supreme Court, are the only sufficiently centralized authority capable of exerting major power over bar affairs, and district attorneys' withholding evidence doesn't please Chief Justice George. The reason that the State Bar emphasizes civil attorneys is financial. The State Bar zealously enforces attorney trust accounts because the State Bar is the their hidden beneficiary: it receives the interest on most accounts, and the State Bar's authority to disburse these funds augments its power; any trust account violation, any instance of commingling in regular accounts, takes money at the State Bar's disposal. While the client suffers delay following misappropriation, the State Bar is the loser. Misappropriation and comingling are the State Bar staples and the trust accounts the glaring conflict of interest, but, recently, court-order violations have been prominent. To understand the change, more important than the rise and fall of Chief Trial Counsel Drexel in the California bar is the rise of Chief Justice George in the California courts.

The problem with the district-attorney prosecutions isn't inherent wrongfulness. Despite the hypocrisy of the State Bar's prosecuting other prosecutors for withholding exculpatory evidence, district attorneys who withhold evidence and who violate court orders by lying deserve disbarment — harsher discipline than imposed. The problem is the tardiness of these prosecutions, taking place under the State Bar's unlimited statute of limitations for cases the Bar claims to initiate. The lateness shows the prosecutions were at the behest of judges who continued to be dissatisfied with these officers of the court after the ordinary statute of limitations expired. The state-bar-establishment's loyalist defense wing, not the DAs, made the effective response to the district-attorney prosecutions — confirmed by the direction of a phone call preceding the ouster: district attorney to influential bar-defense-counsel Margolis.

Installment 64B. State Bar tries to apply discovery procedure to trial testimony (Third in Philip E. Kay Series)

Count on the State Bar to do everything possible and some things impossible to take a default. In my case, Deputy Trial Counsel Melanie J. Lawrence failed twice before resorting to villainy, with help from both the Hearing and Review Departments, to get a terminating sanction. The Hearing Department defaulted Philip Kay when he refused to retake the stand after a week's misruling on his objections.

Kay argued that Rules of Procedure of the State Bar, rule 187, provided the State Bar's only remedy: referring the case to the superior court for contempt proceedings. The Bar Court held that it could use rule-186 procedures, which allow imposing terminating sanctions against discovery abuse. (See http://tinyurl.com/nax68j at p. 45, for both rules.) Rule 186 applies to discovery and allows application of the gamut of procedural sanctions, including termination. Rule 187 applies to "witnesses" and allows referral of nonappearing or uncooperative witnesses to superior court for contempt proceedings. Since rule 187 deals with witnesses, it covers both discovery and trial. If, as the Hearing Department contends, rule 186, despite saying otherwise, applies not only to discovery but also to trial, supporting that interpretation requires explaining why two separate rules exist to redress the same transgressions. On the Hearing Department's interpretation rule 186 and 187 collapse with the addition of contempt proceedings to the misnamed discovery sanctions in rule 186.

This uniquely broad concept of "discovery," that includes testimony at trial, is at odds with rule 186 itself. Rule 186, which authorizes using the Civil Discovery Act for discovery in Bar cases, incorporates the Civil Discovery Act into the Rules of Procedure of the State Bar, but rule 186 doesn't otherwise extend the Discovery Act's scope; the rule only limits its application in State Bar cases, prohibiting arrest and placing conditions on case dismissal. When the State Bar expands the scope of rule 186 to include trial, it goes beyond the underpinning Discovery Act. If section 186 applies to refusals to testify at trial, then the superior court using the Discovery Act, which rule 186 applies to Bar cases, could invoke the Act's sanction provisions to handle refusals to testify in a civil case. The State Bar argues respondent's refusal to testify justifies imposing discovery sanctions because the refusal thwarts the Bar's ability to prove its case in the same way as respondent's refusal to participate in discovery. The State Bar and the Bar Court should inquire why under the Rules of Civil Procedure the superior court couldn't invoke the Discovery Act to default a defendant who refuses to testify in a civil case.

Why then the policy distinction between refusal to testify at deposition and trial, only the first engaging the Discovery Act? During discovery either party's refusal to cooperate prevents the opposed party from building a case, but at trial the parties' positions are no longer analogous. If the plaintiff or petitioner takes the case to trial, that party presumably has sufficient evidence to prove the case. (See Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 714 [public policy disapproves of relieving plaintiff from meeting his burden of proof by defaulting defendant at trial].) The State Bar's need for Kay's extended trial testimony demonstrates the State Bar knowingly took the case against Kay to trial lacking the wherewithal to prove it.

Interlude 10. California State Bar Decapitated

The State Bar board of governors fired Chief Trial Counsel Scott J. Drexel yesterday. The discharge is effective next Wednesday; Drexel's contract won't be renewed. State Bar opponents can celebrate Drexel's fall as partly due to their efforts, but they shouldn't expect fundamental change in State Bar practices, which are rooted in its structure, its rules, the provisions of the State Bar Act, and the outlook of the national state-bar establishment.

Scott Drexel fell in a rift between the California State Bar establishment's prosecutorial and defense wings. The various grades of bar trial counsel support Drexel because he allowed the junior prosecutors to run rampant over attorneys' rights, but Drexel's retributionism hurt business for the State Bar's defense wing. Attorneys specializing in State Bar defense are predominantly former state-bar trial counsel. They remain genial with their erstwhile colleagues, who favor these tainted defense counsel in plea bargaining. The State Bar trades lesser discipline — truly an irrelevant consideration for most respondents, whose careers are destroyed by any public discipline — for respondents coached against contention. Under Drexel the deals have been fewer, disadvantaging the State Bar defense establishment and propelling it into a separate professional organization.

Likely the breaking point for the board of governors — which decided in an undemocratic closed meeting — was Drexel's attack on some lawyers as mortgage scammers. Drexel without clear authority required dozens of attorneys to answer inquiries, although he charged few.

Drexel prosecuted more often, seldom settled significant cases, and investigated extravagantly to justify the State Bar's budget during this economic depression. Unfortunately, more than expressing concessions to opponents of State Bar oppression, the rift between Drexel and the State Bar staff, on the one side, and the state-bar defense establishment and other attorneys whose income Drexel crimps, on the other, expresses interests competing for California's diminished fortunes.

Installment 64A. Exculpation by Time Bar (Second in Philip E. Kay Series)

The State Bar can prosecute a lawyer whenever it pleases, as though the smallest State Bar violation is tantamount to a capital offense, where no limitations period applies because of the deed's heinousness. While the State Bar's jurisdiction for any violation extends to the length of an attorney's career, an ordinary complainant, such as a consumer of legal services, is not similarly entitled. The statute of limitations for a complaint initiated by ordinary citizens — still too long — is five years from the attorney's misdeed. (Rules Proc. State Bar, rule 51(e).)

Those empowered to reach decades into the past to punish abominations, such as regards who a lawyer shares fees with, include — in addition to the State Bar itself — judges. Not so under law, but one practical truth the Kay case establishes is judges count among those entitled to bring tardy charges; only they don't do it openly. The State Bar's freedom from limitation by any time bar serves as a cover for judges, who might want to avoid turmoil until they're, say, securely ensconced in federal court.

Philip Kay may be entitled to dismissal on statute-of-limitations grounds because most of the charges describe events more than five years old, but the State Bar made a secret of complaining-witness Judge Anello, now on the federal bench, and it denied that any complainant had been involved in charging Kay. The Bar claimed the action was completely Bar initiated, but recently unsealed documents show the State Bar was lying, and it knew itself engaged in misconduct throughout its collaboration with Judge Anello.

The documents were unsealed from an employment-related suit by a former deputy trial counsel (Konig). Konig now says he'll testify that ex parte communication is rife between State Bar trial counsel and judges, but, by the contents of the unsealed documents, he differed from his superiors by being even more of a toady. Supervisory admonitions to Konig show what the State Bar tried to conceal, such as:

You are creating all types of potential pratfalls to him [Judge Anello] being a successful witness in the proceedings by involving him in your charging decisions, etc. - Lawrence J. Dal Cerro (Assistant Chief Trial Counsel), quoted in Kay/Dalton Supplemental Motion to Dismiss (filed April 24, 2009).

Meanwhile, Konig laid bare the obsequiousness of the State Bar to judges, unfortunately, by example:

Judge Anello turned to us for help and has been extremely patient and understanding with the delays which are difficult to justify. The longer we continue to delay, the more disgruntled and less committed Judge Anello becomes.

The State Bar still denies Judge Anello was a complaining witness, and it argues that, since he wasn't, the Bar withheld nothing exculpatory from Kay. As the e-mail to Konig above shows, the State Bar was trying to hide Judge Anello's initial involvement and believed, unlike Konig, that it had to limit that involvement, but evidence doesn't have to be certain in its import to impose a duty to turn it over. At the least Kay was entitled to explore the State Bar's embroilment with Judge Anello.

The State Bar claims that Kay hasn't shown the withheld information's materiality, but what would make a matter withheld immaterial to a State Bar investigation, when nobody can call the information trivial? Withheld information in a criminal trial is material when it might persuade the jury to acquit or punish less severely. (Silva v. Brown (9th Cir. 2005) 416 F.3d 980, 985.) Kay's favorable options before the State Bar Court include not only acquittal but also dismissal in the interest in justice, and he is entitled to due process in pursuit of either objective. The statute-of-limitations issue goes to acquittal; Judge Anello's involvement otherwise goes to dismissal in justice's interest. What injustices might Kay have discovered if able to focus timely discovery on Judge Anello's embroilment, the Bar's motives for kowtowing to him, and his motives for delay? In a State Bar case the potential repercussions for justice's pursuit make any major revelation presumptively material.