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:
- A final order of contempt imposed against an attorney;
- Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
- Imposition of sanctions; or
- Imposition of a Family Code civil penalty.
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.