Sunday, April 25, 2010

78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of review

8th in Philip E. Kay series
State Bar respondents are often unaware that the petition for writ of review, the ultimate review vehicle in State Bar Court, has nothing but its destination in common with the petition for review, the review vehicle in the courts of record. Court rules limit only the latter's length. State Bar respondents, otherwise enjoying fewer rights of review than other professionals, can file California Supreme Court petitions containing unlimited irrelevant matter. What explains the court's indifference to the length of a petition for writ of review, when it was so concerned about reading many short ones? It's simple: no one at the Supreme Court reads petitions for writ of review, not even a clerk. So I concluded when within hours of receipt the Supreme Court denied a respondent's petition I drafted.

Phil Kay has now filed a petition for writ of review. Of course, I'd prefer to be proven wrong about the outcome, but at least the petition isn't a completely wasted effort. It performs excellently in setting out and proving Kay's case; I'd recommend it to anyone wanting to understand this important State Bar case because of the petition's legal and factual truthfulness. This characterization doesn't apply to the opinions written by "courts" in the State Bar hierarchy (see disHONNest judge); and it must be admitted, it doesn't apply to the bulk of attorney submissions: being oppressed by the State Bar takes its toll on attorneys' ethics. (See The Richard Fine Story: An Objective Analysis.)

Previous kanBARoo court Installments touch the issues Kay's petition raises except for two related arguments that may have merit but which fail as stated. The arguments are summed up in Kay's theory that the State Bar's Kay decision is tantamount to a collateral attack on established superior-court verdicts. Specifically, Kay argues that a judge may only instigate a State Bar investigation by filing a complaint for what Kay calls "reportable actions." Business and Professions Code section 6086.7 mandates that judges shall report:
  1. A final order of contempt imposed against an attorney;
  2. Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
  3. Imposition of sanctions; or
  4. Imposition of a Family Code civil penalty.
Kay's related claim is that being cleared of trial misconduct necessarily clears the attorney of State Bar misconduct for the same offense. Kay's argument limiting the meaning of "attorney misconduct" and Kay's argument limiting judicial reporting to "reportable events" both treat circumstances mandating prosecutory reports as if they limit prosecution.

If only they did. The statute states that the judge shall report certain events, not he shan't report others. The State Bar hierarchy loves legal over-reaching because it invites simple rebuttal based on the statute's express language. When applied to trial misconduct, this argument presuming limitation to "reportable events" can engender particular confusion. When an attorney appeals to a jury's passions but doesn't succeed—maybe the misbehaving attorney loses—Kay's interpretation implies the judge has nothing to report, seemingly reducing Kay's argument to the absurd. The correct answer—that the conduct involved resolves into another "reportable event," namely a contempt conviction—is hard to grasp from Kay's claim that misconduct requires prejudice.

No doubt, the meaning Kay wants to find in the reported-events statute is what the statute ought to say, and I've contended it's what it must say to survive scrutiny under the U.S. Constitution's equal-protection clause, since holding lawyers to a higher standard at trial imposes a qualitative disadvantage on represented parties. Short of the constitutional argument, Kay can reasonably maintain that the charges he faces are improbable without the statutory events.

Kay intends to make the most compelling case. His forced interpretation of the mandatory-reporting statute doesn't serve his purposes. He should lay a foundation based on his Constitutional rights.


Anonymous said...

Kay's argument re: reportable action:

The rules regarding statute of limitations[SOL] have to be considered. The SB rules of procedure require that the state bar file charges 5 years from the time the behavior took place, if the "matter" is from a "complainant". However, under a case In re Wolff, the courts state that "reportable orders", are NOT from a complainant, per se, they are a matter that the SB has a mandate to investigate themselves. In Kay's matter they're are no "reportable matters." The SB waited well beyond beyond the 5 year SOL. They never charged Kay w/ failure to self-report, nor did the clerk of the court report anything. [as proscribed by statute] The fact that the complainant filed the charge "illegally" against the notice that the statute required, is another matter which, falls under due process, against both the respondent in the state bar matter, and Kays' clients in the underlying matter. That itself rises to gross judicial misconduct. Anello, along w/ the state Bar decided to "conceal" the identity of the complainant, along w/ his bias,[vitriolic hatred] while Anello still presided over the case. Anello, when he was required to "inform" Kay [and parties] that he was going to send these matters to the state bar in open court and the reasons why, would have had to recuse himself, along with stating on the record why he denied a motion for new trial based on conduct of kay, yet at the same time, state why he thought Kay did something wrong that rises to the level where kay needs to be disbarred. Bit of a conundrum??? In addition, he would have had to specify what he found so offensive. [Anello complained about the first Gober trial!!!, he wasn't even a judge at that time.] Either the defendant received a fair trial or not. This Judge can't have it both ways. Or, the Judge is a flat out liar, and the real reason he did this, is as the email in the state bar file states, "he wants his public reputation back". Why? The jurors were outraged, when he cut their verdict, and said to the press, "what are we? just an advisory board for the system? We spent five weeks of our lives giving consideration to this matter? Why have a jury system at all?"
Anello, was outraged by that.

So now you know, why the statute demands that the judge tell in open court he's sending this to the SB. {that include both the plaintiffs and defendants]. Don't you think the Defendants were entitled to this? They could have used it for themselves to obtain a new trial. However, "there's nothing that's actionable in the trial record,"[as stated in an email by the SB Attorney in the state bar file], "and we need the mental impressions of the judge and losing counsel, to augment the record." Something no reviewing court would ever be able to do. If it's not in the record, then it was just in Anello's imagination. In other words a lie!!

Anonymous said...


The State Bar admitted in their submission to Armendariz, that the file was NOT opened as a reportable action.

Anonymous said...

Last but not least, "appealing to the passions of the jury" is an antiquated term. It means nothing at the trial level. The legislature changed the language in CCP 657 the stature dealing w/ the post trial motion "Motion for a new trial" and inserted grounds 5 and 6 to deal with remititur or additur. The only court that can grab onto that "term of art", is the reviewing court, COA, and only after a DENIAL of remittitur in a punitive damage case.

Do you think the State Bar knows any of this law? The State Bar thinks someone other than a trial court can determine if someone received a fair trial. The state bar thinks they have standing [other than the parties] to even raise that question. That question has to asked timely, and treated in accordance with the Statute re: Post trial motions. Armendariz doesn't even know the difference between Motions for Mistrial and Post-trial motions. She's never even appeared as an attorney for a party in her life. She worked for Heller for less than a year , then went straight to the legislature to work as aide to the state congress. She was appointed by the Senate rules committee. See the dissent in O'Brian v. State Bar. So much for qualified.

Anonymous said...

what i left out in the first post.

After the first sentence. Ergo: the statute of limitations applies. The State Bar has been trying to deny this from the moment they filed the NDC.

1]They lied to Armendariz saying that Anello was never the "complainant" under penalty of perjury.

2] She bought into that.

3]We had the records in the Konig v. State Bar unsealed.

4]The State Bar said under oath, that Anello was the complaining wittess, to a Federal Court Judge, Martin Jenkins, and they used that fact declaration to obtain a Summary Judgment ruling in their Favor. They also submitted that to Cal. Superior Ct. Judge John Munter to defeat Konig's State Claim. Which they did.

5] Armedariz never ruled on that. We were only able to obtain the records from the federal court after the close of discovery. She refused to rule on the SOL based on the perjured declarations.

So much for ethical Standards of the State Bar.

Stephen R. Diamond said...

I agree with everything in your first post except I don't find anything in CCP § 6086.7(b) about noticing the attorney in open court. But the judge must give notice.The Anello concealment is an extremely serious due-process breach. (See 64A Installment, "Exculpation by Time Bar.") It deserves wide publicity. I've seen the documentation, so I know the proof's there—in the _Konig_ case—but the legal public needs to see the proof to believe the claim.

As to Judge Armendariz's lack of trial-attorney competence and experience, I can't say that's a valid criticism; Armendariz's oversight responsibilities involve working with these concepts, and she could learn them as a judge as easily as a trial attorney. I don't think these concepts are the hard part of trial work, although it's true that apart from trial attorneys and appellate attorneys, they aren't well-known. Mark Brennan explained the same point in Colorado law here:

There's no reason Armendariz couldn't grasp the distinction between a motion for new trial and a motion for mistrial unless she's just stupid, always a distinct possibility in the State Bar establishment.

Anonymous said...

How polite does one have to be?
1] she's ignorant, and would have corrected her mistakes.[she didn't] In the limited answers Kay gave, this was pointed out. The state bar journal alludes to it. "Kay at times seems to be giving seminar as to trial and appellate procedure"
2] mendacious, which would account for all of her duplicitous rulings.
3]she is stupid.
She's all three.
When a trier of fact doesn't even bother to learn the evidence code which is the only thing she has to follow, the thing speaks for itself.
She said Client-fee agreements are not attorney-client privilege.
Oh, really? See B&P 6068 e Evidence code 902, I think that's it.
She said that you have to object to unanswered questions becoming evidence. Hello? That's an instruction for a lay trier of fact.
When the SB asked her to admit "unanswered questions as evidence, she did.[they were unanswered because Kay refused to answer on the grounds of attorney-client privilege] when we pointed out to her "questions are not evidence, her reply was, "well you didn't object." There is no such objection
How polite does one have to be. Remember, the judicial cannons of ethics state the presumption is that judges "know what the hell they are doing". It's contempt, to assume judges are ignorant. They are required if they are over their head to recuse themselves. Ergo: the contempt arises if you accuse judge of say "not reading a case, when it clearly is apparent", is, not that you're impugning the Judge,per se, it's that you impugn the people who appointed them. For a committee to appoint someone who would not apply the proper due diligence to know the evidence code and subject matter before him disgraces the entire judicial system.
Would it be more polite to assume she is merely ignorant of what she is suppose to know? Yes, however, what does that say about those who thought she would do her due diligence about knowing the most basic, trial and appellate law. If that in fact is what the State Bar is charged with doing. They are not. They are not given the task of knowing any trial law, FEHA law,or anything else that the trial court ruled on in the underlying matters, nor are they courts of "general jurisdiction".
This person, neither, has the judicial temperament or hardware for the job.
She's too defensive and that is apparent in her "decision". It would have been one thing if she was right on the law, she couldn't even get the facts right, let alone the law.
Remember this the same judge in In re Robinson, and the 1st Dist. COA noted that she doesn't even have the most elementary knowledge of appellate law. You's think she'd take the hint,

Anonymous said...

Judges while presiding over matters are not allowed to have any ex-parte communications re: the cases they preside over. How does one notify the attorneys re; the subject matter?
And yes, you're right, the concepts Armendariz, refuses to grasp, are not hard.
Unless, you've been in trials the evidence code is pretty dry. And while an "trial attorney" may not think it's that hard. It takes years for this to be second nature. Appellate work is even more complex. Byzantine might be the operative word. Why would such a inexperienced attorney ever think they could become a judge w/o any trial experience, unless their ego far outweighed their ability.
Neither, Successful Trial or Appellate Attorneys happen overnight. That's why Attorneys who have been practicing law for years are entitled to the presumption that, unless there is a conviction of contempt, the things they do are done in good faith. They don't have to prove that. Doly v. Raidon

Stephen R. Diamond said...

"Judges while presiding over matters are not allowed to have any ex-parte communications re: the cases they preside over. How does one notify the attorneys re; the subject matter?"

Why wouldn't it suffice to send a letter to the attorney? Copies could be served on the other parties if the matter would otherwise be ex parte, but I don't think notice of a report to the State Bar is an parte communication. It's a confidential State Bar matter presumptively irrelevant to the ongoing case. I don't think the other side has or should have the right to know of it.

On what follows in your comment—thank you for the clarification: I don't think we differ substantially.

Anonymous said...

Interesting point.
However, the case law and subsequent statutes discuss "the clerk of the court will forward to the State Bar within 20 days; the order, relevant transcripts, and sanctions orders related to said "attorney misconduct."
In addition,People v. Shelley, 156 CalApp3d 521 states that it is judicial error and a breach of duty not to: warn counsel, inform them that what they are doing is contempt, let them know that this reportable to the State Bar, and take steps to control their courtroom. Courts have to warn attorneys in advance of sanction motions. They have to give an attorney an opportunity to explain their actions prior to findings of contempt. Ergo: contempt proceedings. By following procedure of sanctions, etc. there would have been some type of notice in open court. How does a judge do that a year later after the fact? That's what Anello did.
He denied the Motion for a New Trial based on Attorney Misconduct.
When Kay inquired if he was doing anything wrong,during the trial, Anello, assured him that "nothing "you" did was wrong" and "nothing he did was reportable to the State Bar or grounds for contempt or sanctions", how does that square w/ his complaint?
There are procedures for courts to follow when they "report" matters to the State Bar. They were not followed. Judges are not allowed to have ex-parte communications about anything "related" to the matter that is in front of them. How can a letter to a party attorney regarding a "report" or complaint to the State Bar re: trial conduct that amounts to depriving someone of a fair trial, not be related to the underlying matter? Sending a "copy" to opposing counsel, does not create privacy, or confidentiality. Once the opposing counsel has evidence that the judge "felt they did not receive a fair trial they were entitled to use it, if true. The COA was entitled to see if Anello abused his discretion, on behalf of all the parties involved. There is even a special form for Judges to use when they report orders that are required to be sent to the State Bar. In addition the Complaint filed by Anello violates the public policy behind CCP 170 et seq. and is evidence of bias against the attorneys before him, and is an admission that he did not control his courtroom, if what he alleges in his complaint is true, which it is not. It also prejudices the Defendant. By hiding his bias, he disqualified himself. Ergo, everything that was before him should be void. He also complained about the 1st Gober trial. He wasn't even a judge at that time, and he said on the record that he would not read the previous record. So how did he know that Mr. Kay was "outrageous and contemptuous" in that trial w/o talking to someone? The record now shows that he was having ex-parte communications w/ the disqualified judge throughout the 2nd trial which he was presiding over, the entire time. Which in itself under, Christie v. El Centro, voids out the entire record. So much for the honestly of the judiciary.

Stephen R. Diamond said...

The contradiction between Anello's statement at trial exonerating Kay and Anello's complaint goes to Anello's credibility as a witness. His failure to to notify Kay in any way violates Kay's right to due process. It's important to keep the two issues separate and not over-reach with the first into the due-process domain of the second.

Ex parte communication is defined more narrowly than you think: "the standard [for ex parte communication] generally bars any ex parte communication by counsel to the decisionmaker of information relevant to issues in the adjudication." (Mathew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1317. A State Bar complaint is irrebuttably presumed irrelevant to the ongoing case. (Were it otherwise, that would wreak destruction on the represented party's due-process rights.)

You over-reach in interpreting People v. Shelley in a way reflecting the problem with this interpretation; where an "or" appears in the holding, you tacitly substitute an "and." Here's the holding:

"The trial court has the option to order defense counsel to participate in the defense of his client and to threaten to hold him in contempt if he fails to do so, to warn counsel that he will be reported to the State Bar for a determination of whether disciplinary measures should be taken, or to impose the sanction of contempt if he refuses to participate after being ordered to do so and relieve counsel of his duties."

The case has to do with the judge's duty to tell the party's attorney he's doing something wrong when he performs incompetently and admits it will continue. It shows the judge must warn, one option being that such conduct is reportable to the State Bar. Stating only one of several options, it implies nothing about a general duty to inform the attorney about a potential report to the State Bar. In fact, the disjunctive "or" implies that there is no duty to do any one. The holding says even less favoring imposition of a judicial duty to notify the attorney in court that the court has reported the event.

This isn't to suggest Anello respected Kay's rights when Anello failed to give notice of his complaint. It's important to distinguish the specific points of law from the general conclusion. Over-reaching legal arguments help the Supreme Court over-rule valid claims—if it needed assistance.

[The confusion discussed in these "comments" did not appear in Kay's latest petition.]

Anonymous said...

A State Bar complaint is irrebuttably presumed irrelevant to the ongoing case. (Were it otherwise, that would wreak destruction on the represented party's due-process rights.)

That's the whole point. This so called order will wreck havoc in the underlying proceeding of Marcisz v. Ultramar. In that case the COA ruled that there was NO attorney misconduct and that Defendants received a fair trial. There is now, or presumably will be an order from the Supreme Court that will contradict that final judgment. However, the FEHA Attorneys fee motion is still outstanding. This will be used for a writ of coram nobis or coram vobis to move to vacate the reinstate verdict or deny the attorney's fees.
If you read the In Re: Robinson case, that's exactly why the COA slapped down the Supreme Ct in their Order granting Robinson's writ of coram vobis. What's the difference from Ralphs ability to file a writ of Coram Nobis in the Superior Court in order to vacate the Judgment? The deceit in the Supreme Court, where they bought into the very thing you assume [would wreck havoc to the represented parties] they ordered the COA to do. But, for the integrity of the COA, to follow procedure, they would have set precedent to do this very thing. [wreck havoc to represented parties through misconduct proceedings] That was put in the Petition for Review.
In my opinion this was nothing more than a blatant power grab for the Supreme Court, to put the imprimatur on State Bar findings [whether good or ill] for the "respondent," in order to overturn verdicts they were to "chicken" to grant review on, or worse, knew they couldn't change legally. That is exactly what they attempted to do in In re Robinson, except in that case, Armendariz ruled in favor of the "respondent".
A sword cuts both ways. The disgusting thing is that in this case Armendariz never even bothered to review the record. She never saw what happened in the Marcisz case. The plaintiff's were minors stalked by their 35 year old supervisor. One plaintiff had her shoulder dislocated. Armendariz never saw her testify, yet she made a finding that those verdicts were obtained through moral turpitude. [Deceit and dishonesty by the agent(attorney)on behalf of the plaintiffs] What is done on behalf of a party cannot be separated. Kay wasn't a party to the lawsuit. However, he was their agent. In order to persecute[open an investigation] Kay, they needed a finding or [predicate order] that established that a party was denied a fair trial. [Obstruction of justice] See In re Anderson. That's the definition of what disrespect of court is. Nothing else is, absent of "finding" of contempt. The actual record of the underlying cases state that all parties received a fair trial. How does anyone else have standing to claim otherwise? They don't.

Anonymous said...

“By allowing this defendant to proceed to trial without the assistance of counsel when he had not affirmatively waived his right to such assistance, the court abrogated both its duty to protect the rights of the accused and its duty to ensure a fair determination of the issues on their merits. Furthermore, the court's action, rather than promoting, actually hindered the orderly administration of justice. By permitting such a proceeding to go forward,**880 the judge virtually assured an appeal, a reversal and a future retrial, thereby placing an unnecessary additional strain on an already overburdened judicial system. On the other hand, the court had at its disposal a number of options, any of which would likely have prevented the denial of defendant's*531 right to assistance of counsel....” ( People v. McKenzie, supra, 34 Cal.3d at pp. 626-627, 194 Cal.Rptr. 462, 668 P.2d 769.)

Since when is duty optional?
While you mention the judge has options open to him, as to which tools he will use, to insure a fair trial, he does not have an option to insure a fair trial.
That is a duty.
He has to put all parties on notice that the train is running off the tracks.

Anonymous said...

“ ‘Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.’ ( Glasser v. United States (1942) 315 U.S. 60, 71 [86 L.Ed. 680, 699, 62 S.Ct. 457, 465];

Both this quote and the one in the previous post are from People v. Shelly.

Anonymous said...

Since when does the State Bar have standing to falsely report what happened in a lawsuit between private parties? To create an issue at bar, to be determined by them?

To open an investigation?

They can't change the orders in the underlying case. They are what they are.

Stephen R. Diamond said...

I think you're getting at another point you don't quite state. You're saying in Kay's case specifically, the court had a duty to warn Kay, in some way or another, that he was engaging in misconduct.

Here again some distinctions are needed. Surely the court's failure to issue such a warning is evidence the court hadn't really seen any misconduct; you can go that far without overreaching. But the court's duty to prevent a trial from going off tracks does not as a matter of law imply that the court had a duty to warn (that is, in open court) before filing a Bar complaint.

This argument does involve my main point in this Installment. State Bar misconduct is not as a matter of law equivalent to trial misconduct because trial misconduct misconduct doesn't occur without a probable effect on the judgment. The duty under People v. Shelley is to the parties. If the judge doesn't think there's a threat to fair trial, the trial hasn't gone off course as far as the judge's duties are implicated. There may still be a threat to the lawyer's license if the lawyer's efforts were ineffective .

Again to the distinction: the above is pretty implausible. Why wouldn't a judge worry about the effect on the trial when the court thinks the lawyer is involved in serious Bar-defined misconduct? But that's an evidentiary point. It discredits the judge before the finder of fact (such as it is). I think it ought to be a matter of law too. But it isn't under the statutes and rules.

State Bar misconduct charges don't require contempt or court sanctions. Even though it's unlikely that serious misconduct would occur where the judge doesn't perceive a threat to the integrity of the case—think of it as an attempt crime committed by the reported attorney—the law does not presume such circumstances can't exist.

Anonymous said...

I disagree.
Obstruction of justice is a common law crime and can only be prosecuted through the penal code. There is no civil equivalent. Contemnors are presumed innocent.
The settled axiom of statutory construction, that if something is not in the statute, one cannot take language from another statute and augment the one where the language is deleted.
Courts can only adjudicate disrespect through the contempt process.If the courts do not make a finding of contempt based on disrespect, it's over, and no disrespect occurred. Absent a contempt finding [order],
the state bar cannot allege disrespect occurred. The finding by a court that disrespect occurred is a predicate that can only be established by the court it occurred in. The court had to have made that finding at the time when it had jurisdiction over the matter. It cannot be done later. Otherwise contempt[disrespect] did not occur.
While other matters such as fraud have civil equivalents there is none for contempt of court.

Stephen R. Diamond said...

"Courts can only adjudicate disrespect through the contempt process.If the courts do not make a finding of contempt based on disrespect, it's over, and no disrespect occurred."

I understand that's your position, but I don't see any argument or authority. Following the sentence quoted above, you just repeat this point.

"Obstruction of justice is a common law crime and can only be prosecuted through the penal code. There is no civil equivalent. Contemnors are presumed innocent."

This is sophistry. Obstruction of justice, having no civil law equivalent, cannot be prosecuted through the civil law. That doesn't say, as you claim, it can only be prosecuted through the penal code!
The claim proves too much. If obstruction of justice can only be prosecuted under the penal code, there could be no State Bar matter predicated on disrespect, even with a contempt conviction. This shows that the rule that there can be no civil action predicated solely on a common law crime does not mean there can be no such State Bar matter.

(Recall, also, the demonstration that People v. Shelley , by listing the court's options as alternatives, directly implies you're wrong—although this is dictum.)

Only the trial court is equipped to exercise original jurisdiction over disrespect of its authority, but the State Bar Act doesn't respect this reality. When you claim existing law clearly establishes the State Bar's lack of jurisdiction over alleged acts of disrespect, you give existing law too much credit; The State Bar Act and the Rules of Professional Responsibility are poorly drafted and inadequately tested and developed.

Anonymous said...

The State bar is not charged w/ prosecuting contempt. Their charge is whether discipline is required for an offense.
They cannot prosecute contempt or disrespect of court absent a finding.
Lady v. Worthingham, states they are not allowed to review judgments from COA's or the Supreme Court. Their charge is to determine whether an attorney needs discipline in addition to the punishment meted out by the Article VI court.
Theoretically, they could determine that the punishment was sufficient to deter the conduct of the attorney, however, they could never disgorge the underlying contempt finding or monetary sanctions by the courts. They lack authority and jurisdiction, to do that. The hearing judge could also determine that the State Bar did not prove, by clear and convincing evidence, that there was culpability for discipline,in addition to the punishment meted out by the court, however, they don't get to determine that the findings of the Courts of contempt or sanctions were wrong.[or not meritorious] Only a reviewing court can determine if those things were done in an abuse of discretion or w/o jurisdiction.
The fact that they can't undo an order,[findings] restricts their ability to create an order [findings].

Stephen R. Diamond said...

You're not responding to my arguments. I'll repeat them again in relation to the present points, but I can't do so indefinitely.

Your basic argument, repeated in different guises, is:

"The State bar is not charged w/ prosecuting contempt. Their charge is whether discipline is required for an offense.
"They cannot prosecute contempt or disrespect of court absent a finding."

The argument begs the question. You assume a State Bar conviction of disrespect either requires a contempt conviction or is equivalent to one. Then you reason that the State Bar isn't charged with adjudicating contempt. But that's the worst sophistry. The attorney charged with disrespect isn't charged with contempt. Even if the elements are in practice identical, they aren't the same offense. The penalty is different; even the standard of proof is different.

If you don't see the point yet, here's a hypo that should clinch it. (Please answer my arguments if we're going to have a discussion.): Attorney engages in conduct that borders on contempt. The judge could not prove contempt beyond a reasonable doubt, but believes his evidence is clear and convincing (the State Bar standard). My question for you: What statute (please cite the specific language) prohibits the court from reporting the disrespect and proving it by clear and convincing evidence before the State Bar Court? Remember, the hypothetical judge didn't cite for contempt because he doubted he could meet the beyond a reasonable doubt standard regarding the attorney's willfulness.

You are clearly and completely wrong on this point. A petition based on it will readily be dismissed by the Supreme Court because it misstates the law. (Trial attorneys over-reach in appeals all the time.) I'm going to have to request that you actually quote your sources if you want me to respond because only that way will I be able to show you that your inferences are wrong and potentially disastrously so.

You say "the State Bar is charged with..." Quote the statute; you will immediately see without my even commenting that your conclusion doesn't logically follow from it.

In another communication you refer to Richard Fine being exonerated of filing frivolous motions because no court found them frivolous. You're wrong. Richard Fine was repeatedly sanctioned in trial court for frivolous motions. He wasn't charged with it because the State Bar was afraid of his First Amendment argument. So they charged him with moral turpitude instead, for those same frivolous motions.

There are no statutory standards for disrespect; nor are there for moral turpitude. Your argument that the Bar is precluded from borrowing from one statute to interpret another. Let me take one more point:

"The settled axiom of statutory construction, that if something is not in the statute, one cannot take language from another statute and augment the one where the language is deleted."

This is just wrong. Statutes are commonly supplemented by inferences based on other statutes. Show me a point cite to authority for this bogus "axiom."

"Disrespect" is a term in ordinary English. It requires no formal criteria, but if the courts revert to the contempt statutes to determine what the drafters meant by "disrespect," there is nothing wrong with it legally.

Anonymous said...

I apologize for my bogus idea of statutory construction, however, this is where i came up w/it.

**830 [11] Headnote Citing References[12] Headnote Citing References The reviewing court should analyze the statute according to its plain meaning. If the meaning is not plain then the court must ascertain the legislative intent, the evils to be remedied, the legislative history, public policy and the statutory scheme of which the statute is a part. ( People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal.Rptr. 656].) “It is a settled aim of statutory construction that significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided. [Citations.] It is an equally settled axiom that when the drafters of a statute have employed a term in one place and omitted it in another, it should not be inferred where it has been excluded.” ( Id. at p. 1010, 239 Cal.Rptr. 656.)

I will attempt to cite to everything that I posited.

Anonymous said...

with regards to any other tribunal reviewing grounds for contempt;

See: 4 Ca2d 86,
Although mandate may be used to compel contempt proceedings where that is the only method by which the right of a party may be protected, where there is no particular party interested, the dismissal by the court or judge of a contempt proceeding is final and conclusive and beyond review by any other tribunal. People v. Latimer, 160 Cal. 716, 117 P. 1051; 5 Cal. Jur., p. 959. **698 It cannot be held that in this matter there is any party beneficially interested.

Anonymous said...

these charges are the ones that were dismissed in the Richard Fine matter, for lack of a findings by the underlying courts;

Matter of Richard Isaac Fine (St.Bar No. 04-O-14366), where it reversed the Hearing Judge’s findings that the attorney had filed a writ for improper purposes, and dismissed the charges, explaining:

the Court of Appeal did not conclude that respondent’s contentions were frivolous or that the appeal or the writ for supersedeas-stay were filed for any improper purpose. In fact, the Court of Appeal denied the request…to impose sanctions against respondent….

Ergo: I extrapolated that in order to discipline for those violations, there needed to be a finding from the underlying matters as evidence that indeed a violation occurred.

Anonymous said...

last but not least, your Hypo, lacks clarification. Cite for contempt or charging order v. order or "finding" of contempt.

these terms are always misused. To cite one for contempt is the charge, and it's jurisdictional. It has nothing to do w/burden of proof.

And are you referring to direct or indirect contempt?

The last part of your hypo, states the judge could not prove "willfulness", that has nothing to do w/ burden of proof. That is an element that has [depending on the type of contempt]to be established for jurisdiction to hold a hearing
for indirect contempt. If you don't have the elements to establish jurisdiction, it's irrelevant what type of burden of proof you have. You have no jurisdiction to hold the hearing.
Maybe we are talking at cross purposes. Jurisdiction v. the ability to even hold a hearing based on the merits.
With regards to "willfulness" of the attorney in a trial setting, the record is all the judge gets. What the "intent" of the attorney is, not discoverable. The legal tactics, motions, objections, etc. speak for themselves. Anything beyond that, legal strategy, etc. or, the thoughts, or impressions, as to why the attorney did what he did in a trial, is protected under Prof Rule 3-100. They need the waiver of the client. See attorney-client privilege, and that covers attorney work product. The requirement of "direct" contempt and the "order" a judge has to write, has to "on it's face" constitute contempt, there is no requirement of "willfulness." However, there is a jurisdictional requirement of an order. The order is required to show that the recitals constitute contempt. Intent is irrelevant. At no point are you allowed to tell a judge to f(*& off. That's contemptuous "on it's face." The order just has to show that was a said, and that it was "in the presence of the judge". However, there has to be an order written by the judge. NO order, no direct contempt.
Then you are stuck w/ indirect contempt, and the elemental requirements for jurisdiction to hold a hearing for that.
The first jurisdictional requirement for indirect contempt, is a written "valid" order, or affidavit. There are three more jurisdictional requirements for the sitting judge to consider before he begins his "hearing." All of those have to be in the OSC
or charging order. If they are not, no proceeding can take place, because the OSC, or charging order is void. burden of proof is irrelevant.

Anonymous said...

here's the Lady v. worthingham cite 61 CalApp2d 780,

*782 First: The only question decided by the State Bar was that a “formal proceeding” should not be instituted against appellant. It is to be noted that there is nothing in the record to indicate that the State Bar, or an investigating committee thereof, reached a different conclusion upon the facts than the conclusion reached by the trial court and affirmed by us;

[2] Headnote Citing References Second: So far as the decisions of this court and the Supreme Court are concerned, it is utterly immaterial what conclusion the State Bar, or any investigating committee thereof, may have reached relative to a judgment of this court or of the Supreme Court. The decisions and judgments of the District Court of Appeal and the Supreme Court are not subject to review by the State Bar or a committee thereof.

Anonymous said...

the only conflation of ideas is in your hypothetical.

That somehow a judge who can't write an order that would sustain a writ of habeus corpus or certiorari re: direct contempt, gets to go whining to the State Bar is ridiculous. Their option if they don't want to find for direct contempt, is to file an affidavit and send it out to another judge for indirect contempt. The don't get to whine to the State Bar and deny an "alleged contemnor" due process rights. My God, the low threshold a judge has to meet in a direct contempt is a joke. However, if his "order of contempt" can't stand a jurisdictional challenge,well, the thing speaks for itself.

Contemnors get to claim the 5th. Hello? Read the treatises on contempt. Both kinds

Stephen R. Diamond said...

Regarding your first and second points, starting "with regards to any other tribunal reviewing grounds for contempt" and "these charges are the ones that were dismissed in the Richard Fine matter, for lack of a findings by the underlying courts":

Your first example, where the superior court dismissed the contempt and the State Bar petitioned to force a contempt trial, is irrelevant. Its your same confusion over and over—you determine that some limitation on contempt pertains to a State Bar rule on a contempt-like infraction. Nevertheless, if someone actually had contempt charges dismissed, I would recommend arguing against State Bar charges on that basis. It's a losing argument but not beyond the pale. But you over-reach when you extend this to situations where contempt was never formally contemplated at all by the trial court.

The second example, Fine's allegedly frivolous petition to the Court of Appeal, the key basis lies in the sentence that comes immediately after what you quoted: "Thus, we do not find there is clear and convincing evidence that respondent's appeal...." If the Court of Appeal denied sanctions, it's impossible to claim the evidence for the infraction is clear and convincing. This doesn't make the imposition of sanctions a precondition.

The third point, starting "last but not least, your Hypo, lacks clarification. Cite for contempt or charging order v. order or "finding" of contempt"

Here you show the amateurish tendency to make express distinctions actually clear from the context and that bear no relationship to the issue under discussion (coupled with not making the necessary distinctions). But apparently you realize that these points are more a display of pomposity than of analysis because you manage to get the point and answer directly in final post:

"That somehow a judge who can't write an order that would sustain a writ of habeus corpus or certiorari re: direct contempt, gets to go whining to the State Bar is ridiculous..."
(continued next comment)

Stephen R. Diamond said...

(Continued from previous comment)

Unfortunately calling it ridiculous is the pounding of the table that a trial attorney performs when without the law or facts. Willfulness is an element of contempt, and it must be established to satisfy the applicable standard of proof, to clarify your immense confusion in the third post where you draw distinctions irrelevant to the discussion. So, you still haven't taken into account the different standards for proving the willfulness element of contempt (sometimes beyond a reasonable doubt) and the disrespect-of-court State Bar rule (clear and convincing evidence). My hypo does make the point, if only you'll attend to it instead of warding off the unpleasant truth.

Finally, the fourth item: "The only question decided by the State Bar was that a “formal proceeding” should not be instituted against appellant."

You use this to try to prove that "Their charge is whether discipline is required for an offense" which you counterpose to "prosecuting contempt." First, the quote doesn't deal with the State Bar's "charge" but only what the State Bar in fact had decided in the case at hand. In that case charges had been dismissed, and the court is saying it decided nothing more. You have to read the cases objectively, not fitting them to your preconceived agenda. You may then develop an argument that suits your agenda, but it's harder work than you can realize when you read so subjectively that you end up having no idea what the case really says.

This isn't really a hard question. The fact is, if the promulgators wanted to make a contempt conviction a precondition for finding disrespect, they could easily have said so. Try on this actual rule of statutory construction: different words imply different concepts. Since the Legislature and rule-promulgators used a different term, "disrespect for court" versus "contempt of court," for the State Bar infraction and the exercise of CCP § 1209 power, the two are not the same offense, and code and case references to section 1209 don't limit State Bar discipline for disrespect of court.

Anonymous said...

Read In re: Anderson.
Nuff said,

Anonymous said...

O.K. the State Bar can charge someone w/ disrespect of court. How do they prove it w/o a charging order, from the court?
Trial transcripts of colloquy between judges and attorneys who are not parties to the underlying action are inadmissible hearsay. See. In re Kittrell, In re Carr.
Absent an Order of some kind, memorializing what was said, how do you get in competent evidence, w/o waiver of the respondent?
Are you saying the State Bar can just go through a transcript and pick out anything they want, [they didn't witness anything] and declare it disrespect based on their reading of words?

Stephen R. Diamond said...

Provide full cites to Anderson, Kittrell, and Carr. Then I can address your comments. (One of the sly tricks unique to the California State Bar system is that Bar cases aren't in the standard court reports. This gives State Bar prosecutors and State-Bar-establishment defense counsel [former State Bar prosecutors with benefits] a one up on anyone who doesn't pay the substantial separate subscription fee.)

Anonymous said...

If all of the above arguments had any validity, the Superior Court in San Francisco would not have sustained the defendant's demurrer without leave to amend. For an accurate description of the legal argument, someone should post that demurrer.

The real question is whether the Supreme Court is going to disbar him after all of these motions, filing of suit, etc. Remember suing the State Bar in Superior Court was the second time he'd sued them, the first time was in District Court, and that got dismissed rather quickly.

It's a shame, he's a tremondous talent, but the courts aren't going to tolerate this behavior, I suspect.

Anonymous said...

Only an idiot would draw such conclusions from the ruling on the demurrer. It was granted solely on lack of the superior court having jurisdiction. The court did not disagree w/anything else. The State bar wanted the Court to make other findings. The judge wouldn't bite. As the judge said, to the state Bar, you don't want me ruling on these matters. The Judge admitted until there is an actual court order, from the Supreme Court, Kay hasn't been harmed. The decision is only a "recommendation". The Judge stated Kay's remedy is to file a suit in federal court after the ruling in the supreme ct. The other anonymous doesn't know the facts of anything. Oh, and by the way, I'm not a trial attorney.
The Judge also didn't disagree that Kay's due process rights weren't violated.
The Judge had no answer when posed with the admission the State Bar filed in their petition for review in the Jacobs v. State Bar matter.
The State Bar admits that the legislature did not give them power to "enforce their subpoenas", and that "they are required to seek aid of the superior court through the contempt process to enforce subpoenas." So, where does one go to enforce the rights the legislature granted to attorneys under B&P 6050, and 6051? You can't file a lawsuit in the Supreme Court.

Stephen R. Diamond said...

"The other anonymous doesn't know the facts of anything."

Although not for lack of trying. The other Anonymous—it's revealing how the legal profession goes anonymous when Commenting at a blog critical of the State Bar—is right that we need to see the documents if we're to discuss them.

"Oh, and by the way, I'm not a trial attorney."

Oh, I know that, and if you were, I wouldn't have said you made some typical trial-attorney errors. All of you Anonymice are entitled to your anonymity; I don't reveal information that would breach it.

Anonymous said...

If you read the decision in Kay, et al vs. the State Bar filed in the U.S. District Court, you can see what the Feds are going to do with any claim brought by Kay after any action taken by the State Bar.

Rather than post personal attacks, with name calling a discussion of the issues is probably a little more fruitful in these types of discussions.

Anonymous said...


When the Supreme Court denied review in Gober v. Ralphs and Marcicz v. Ultrastar, they lost jurisdiction over the matter, it then returned to the trial court for entry of judgment. How does the Supreme Court through it's Administrative arm gain jurisdiction to "review" the record again?
No one is disputing personal jurisdiction over the advocate for these parties, however the record belongs to the parties, and all the pleadings are the "work product" of and for the parties.

Anonymous said...

You need to read the State Bar's response to Kay's Petition. All of the law is contained there.

If I had to guess, I suspect that Kay won't get the 5 year suspension, with 3 years actual, rather they are probably going to disbar him, and will use the two cases he filed in Federal and State Courts to justify their decision.

Stephen R. Diamond said...

Apparently the other Anonymous is perceptive: you are an idiot. An anonymous poster who proclaims the law without demonstrating any knowledge of it carries no credibility around here.

We've all read the pathetic State Bar brief; I've dissected the arguments in these pages, which as a matter of fact, I know you haven't read.

Anonymous said...

I disagree. An example of the issues contained in the State Bar brief is the specific code section allowing the judges to testify, in direct contradiction to Kay's brief. See evidence code 703.5(c) for the law in that area. There are more examples, but I don't have time to list all of them.

Name calling doesn't work well in a legal argument. I have read their brief, filed in reply to Kay's Petition, and read Kay's brief, which by the way contains numerous typos and omissions.

The point is that it appears that Kay is off base in a good many of his points. I don't have time to go through the entire set of points, but I suggest you read the State Bar's brief, which BTW isn't on line from the court, you have to go to the court to read it, unless someone has posted it, which I doubt.

Anonymous said...

If a person has been disqualified as a judge, and can no longer be considered a judge for that matter, how do they testify? As a lay witness? As a matter of law, when a judge is disqualified, they are considered unfit to sit as a judge. re: that matter, and can no longer be considered a judge. The code section states they can no longer add anything to the record. Your cite only applies to people who can be considered judges. It's against the public police of CCP 170 et.seq. Not only are you an idiot, you're dishonest. In addition, the State Bar's brief states that the case law re: taking defaults while an answer is on file [ which is void], were written before the Discovery Act. That's a Bald face lie. The Discovery Act was enacted over twenty years ago. Heidary was written in 2002. You have problems understanding time. As far as I know we still live in the same time continuum. We haven't attained Star Trek technology yet.

Anonymous said...

A reading of the State Bar brief pointing out the areas in which Kay is factually mistaken should be required reading.

However, the Supreme Court will rule on his points. I suspect that they will not see much merit in his arguments. It's interesting to note that they left Dalton & Oliver off. A real question is did they make a deal with the State Bar? Anyone know the answer to that?

BTW: It's policy not police.

Anonymous said...

I don't know who you are, but you don't know the facts. The State bar doesn't either. They weren't at any of the trials. As for Dalton and Oliver, you know he entered a ALD, and was dismissed.

Your questions expose more than you know.

Anonymous said...

So I made a mistake, e instead of y. Mea Culpa.

The question is: do you work for the Supreme Court? How do you know anything, as to what they will do? Not only don't you know the facts, you don't even know the applicable law. While I may not be a trial attorney, at least I know the applicable law. Your ignorance shows you don't know any discovery law, nor the code of evidence.

How many Rules of Professional conduct have you violated by even commenting on this blog?

Anonymous said...

No one has answered my question. No one disputes the personal jurisdiction of the Supreme Court over lawyers. However, there is a second prong, subject matter jurisdiction. The Supreme Court gave up the subject matter when it denied review for these cases. These cases are final, the orders,[or lack thereof] are also final. Nothing can be entered or decided re; these cases. Hearsay comments from disqualified judges cannot be turned into "retro orders" that are not in the minutes or the clerks transcripts.
Findings of fact re: motions that Kay's clients filed, and often prevailed upon, cannot be inserted into the record.

What the hell is going on?

Will anyone answer?
Can anyone?
How could Mr. Kay asserted anything other than on behalf of the clients? That is the question no one has an answer to.
Mr. Kay did nothing as a party.

Stephen R. Diamond said...

This is another version of your previous argument, which you can't rid your brain of. Before, you said that the Bar Court was substituting itself for the trial court because disrespect of court was contempt in drag. Now, you say that the Supreme Court, in trying to exercise jurisdiction over a State Bar case, is conducting a civil-case review in drag, when it evaluates evidence from the underlying cases.

You must grasp the conceptual error: similarities in procedure between different types of proceedings do not support the conclusion that the procedures are identical. Just as disrespect of court isn't contempt, so the testimony of a disqualified judge concerning the trial while that judge presided isn't changing the completed trial record or conducting a review of the civil case.

Anonymous2 exploits such errors just like the State Bar: he treats a single mistake as the entire case. (With as little understanding, as he can't even paraphrase the State Bar brief he cites.) As you can see, a respondent's persistence in error helps the State Bar-establishment, just like it helps its Fanboy, Anonymous2.

Anonymous said...

You're right. I can't get it out of my head. Under In re Anderson, 3 Cal state Bar Ct Rt 775, 1997 WL 101350

Unless the state Bar is charging someone interfered w/Ralphs right to a fair trial, 6068(b) can only be invoked when the respondent makes false statements, the burden in on the State Bar to prove the falsity of the statements, and they have to be knowingly false and said w/ reckless disregard. It goes on to say they cannot use statements that can be considered hyperbole.
The State Bar admits that Ralphs received a fair trial, and their brief also admits, that the truth of the statements are irrelevant. So under Anderson the charges are not subject to discipline.
Please respond to Anderson.

Anonymous said...

U.S. v. Wunsch,(9th Cir 1996) 84 F.3d 1110,1119 and In re Anderson, 3 Cal State Bar Ct. Rt 775, 1997 WL 701350.
State what the definition of "disrespect of the court is." It's not based on a definition in the dictionary. The dissent in Wunsch even goes so far as to tie "offensive personality" to "interfering w/ the administration of justice." Anderson, states that in civil cases that means, denial of a party's right to a fair trial.

This is why I keep harping on if there was not a finding that Ralphs was denied a fair trial, the State bar has no jurisdiction, absent some type of sanction or finding of contempt.

In my previous comment I cited Anderson 1997 WL 101350, it should have read, 1997 WL (7) not the 1. Sorry for the confusion.
Please address Anderson and Wunsch.

Stephen R. Diamond said...

OK, I recall the cases, but I can only vaguely intuit your argument. Let's try this. Pretend you are a trial attorney, and state a careful, precise argument with point citations.

Anonymous said...

Your comments in the 76th installments leave out one glaring omission re: original jurisdiction. While in admission cases review is the only issue, in disciplinary cases their the property right has already been established. No respondent can file a cross complaint, or seek redress of the violations the State Bar engages in, in violation of statutory rights granted by the State Legislature[negligence per se]. A defense is not equivalent, to independent claims of a respondents violations of an illegal taking of his property rights. The denial of a petition for review, doesn't even contemplate the failure of the ability for "their being no place to file such charges", ergo: the suit of Dec. Relief. How can a "review court" review charges that the State Bar a]won't allow to be filed, and b] because it's not a court of general jurisdiction, has no authority to hear?

Stephen R. Diamond said...

"How can a "review court" review charges that the State Bar a]won't allow to be filed, and b] because it's not a court of general jurisdiction, has no authority to hear?"

In reviewing the charges, the reviewing court deduces from the State Bar Act's omission the Legislature's intent to omit the claim.

Bus. & Prof. Code, § 6075: "In their relation to the provisions of Article 6, concerning the disciplinary authority of the courts, the provisions of this article provide a complete alternative and cumulative method of hearing and determining accusations against members of the State Bar."

A complete alternative method means everything done under the State Bar Act falls entirely under that act. A Member's claims against the State Bar arising from the State Bar's claims against the attorney are part of the resolution of the State Bar's claims against the attorney, at least where the relief sought directly concerns the State Bar's claims against the attorney.

The courts hold the attorney's property rights in a discipline matter were balanced against the interests of the public in the due process inherent in the State Bar Act.

Anonymous said...

Kay is not longer eligible to practice law. The Supreme Court suspended him for 5 years, three actual, with other conditions. They did so without comment regarding any of the issues raise herein.