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.