Thursday, August 18, 2011

91st Installment. Raw deal on new Cal. State Bar Court Rules of Procedure

Shortened time and attorneys’ fear of the State Bar limited public comment on the Rules of Procedure revisions to a critical handful, the State Bar having maintained, with only apparent persuasive success, that the new rules—in light of the rights afforded other occupations—are fair and proper for attorneys. But the new rules degrade attorneys’ procedural and even substantive rights, in desperate violation of California law, as the State Bar struggles to handle its fourteen-hundred-case backlog. The rules’ most important changes concern discovery rights, rules of evidence at trial, and bases for disbarment, each change disadvantaging State Bar respondents, not only compared to the old Rules of Procedure but also to the protections other professionals obtain in California, as well as to protections due attorneys in most other jurisdictions.

Illegality of the new Rules of Procedure.

The changes to the Rules of Procedure are illegal under California law. New rule 5.65 limits respondents’ discovery to admissible documentary evidence and to identifying information concerning persons knowledgeable about admissible evidence—without corresponding limitations applying to prosecutorial discovery, which can include respondent depositions. Thus, the Civil Discovery Act no longer governs attorney discipline, notwithstanding the California Supreme Court’s holding:
Since respondent acts herein as an instrument of the courts, its activities should be governed by those statutory principles which have been enacted as rules of procedure for all courts. By whatever name a disciplinary proceeding may be called, whether an action or special proceeding, it is in essence the initial stage of an action in court. It follows that the discovery act, in toto, is applicable thereto. (Brotsky v. State Bar of Cal. (1962) 57 Cal.2d 287, 301.)
The Civil Discovery Act authorizes discovery of nonprivileged information calculated to lead to admissible evidence, regardless of that information’s lack of direct relevance. (Cal. Code Civ. Proc., § 2017.010.)

While the old Rules of Procedure did not expressly authorize use of the Evidence Code (as they did the Civil Discovery Act), the Bar Court had accepted the California Evidence Code, and the same logic that applied the Discovery Act to the State Bar Court in Brotsky also prescribes the State Bar’s obedience to the Evidence Code. The new evidence provision, rule 5.104(C), admits any evidence customarily relied upon in serious matters, and rule 5.104(D) specifically admits hearsay evidence when it clarifies the implications of non-hearsay evidence.

The new default rule, rule 5.82(4), permits disbarment of any defaulting respondent, a truly desperate and draconian measure that imposes disbarment as the de facto punishment for default. The rule creates a new basis for disbarment, violating Business and Professions Code section 6078, which prohibits charges for nonstatutory causes. Rule 5.82(4) expedites the State Bar’s longstanding exploitation of alleged minor infractions as occasions for fishing expeditions, since the Office of the Chief Trial Counsel can now charge a Member with an offense warranting only an admonition yet impose disbarment if the respondent declines to cooperate with the investigation or submit to trial. Respondents' rights upon default have long been in a sorry state—all facts alleged in the Notice of Disciplinary Charges are deemed admitted, however nonexistent their basis—now, unspecified facts warranting disbarment are presumed.

Attorneys’ rights compared to other professions in California.

State Bar apologists have convinced some by arguing that the new rules equate with the protections other occupations receive under the Administrative Procedures Act (APA), but the argument ignores key facts about the APA. (Gov. Code, § 11340 et seq.) First, tethering to rights granted criminal defendants has narrowed the rights afforded under the APA. The Legislature passed the APA in 1945, before California established civil- and criminal-discovery procedures. California common law since expanded the rights under the APA in tandem with criminal procedure, but in 1990, the reactionary voter initiative Proposition 115 (styled the "Crime Victims Justice Reform Act") eliminated criminal defendants’ common-law rights by restricting their procedural rights to those provided by the U.S. Constitution. The California Supreme Court tempered the constitutional amendment, Article 1, section 28, and derivative changes to the Penal Code, but running scared in the aftermath of the 1986 recall of Chief Justice Bird and other liberal justices, the court ratified the initiative’s thrust: to interpret California criminal-defendants’ rights no more expansively than the U.S. Supreme Court interprets the U.S. Constitution’s Bill of Rights. The curtailment of independent state grounds extended even to allow the use of hearsay evidence in preliminary criminal hearings, where prosecutors establish probable cause. (This despite preservation of the California Constitution’s Article I, section 24: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”)

The second fact ignored by the State Bar’s propaganda for reducing attorney rights to the APA level is that other statutes supplement the APA as it applies to various occupations—rendering comparison between the Rules of Procedure and the bare APA inapposite. The chart below compares the new Rules of Procedure governing attorneys, the bare APA, and its application to other professions.
(Click to expand)
Most noteworthy is the protection of teachers threatened with discharge or suspension from government employment. California statutes provide teachers, as they did attorneys under the old Rules of Procedure, with the discovery rights of civil litigants under the Discovery Act. As additional protection, an accused teacher is tried by a three-person panel that includes an adjudicator chosen by the respondent. Also included in the teachers’ panel, as in hearings under the APA generally, is an administrative-law judge from the Office of Administrative Hearings in the Department of General Services. (Gov. Code, § 11370.1.). Teachers need heightened protection comparable to attorneys because like attorneys, who may suffer retaliation when they represent unpopular or powerless clients, teachers may suffer it for what they teach. (Recall the Scopes trial.)

Doctors receive some heightened protection in their right to depose opponent expert witnesses, denied attorneys except by specific motion. Doctors don’t get the broad discovery rights contained in the Civil Discovery Act, but the results of applying most of the APA to the medical profession aren’t encouraging, even though doctors lack the special retaliation-related concerns of the inherently politicized professions, law and education. Medical delicensing hearings are notorious for their use by hospitals to axe unpopular physicians, whom administrators may resent precisely for their concern with quality care.

Even the rights of California attorneys compared to occupations governed by the bare APA are wanting. The APA provides for trial by an administrative-law judge, who is apt to be more impartial than a judge attached to the State Bar Court by serving in its Hearing or Review Departments. The impartiality of the hearing officer is, after all, the most important consideration in obtaining just outcomes. (Ward v. Village of Monroeville (1972) 409 U.S. 57, 59–60.) The unique right retained by California attorneys, to move for additional discovery, may actually benefit the prosecution because such motions must establish strict relevance—as perceived by the Hearing Department judge.

California attorneys’ rights compared to attorneys in other jurisdictions.

While the State Bar exaggerates attorney rights compared to California professions under the APA, it avoids comparison with attorney-discipline procedures in other jurisdictions. Fortunately, the New York State Bar Professional Discipline Committee recently (June 2009) studied the comparative issues. The New York report, among its other comparisons, examined how the U.S. jurisdictions compared on discovery and evidentiary rules. 

Regarding discovery, the New York study divided U.S. jurisdictions into three groups, finding that 8 states allowed almost no respondents’ discovery, 6 allowed some, and 35 allowed all or almost all discovery available to civil litigants. California now falls behind 70% of jurisdictions with regard to the discovery afforded attorneys in discipline cases. With regard to rules of evidence, 70% of jurisdictions (not the identical 70% allowing full discovery) apply nearly the same rules as in civil trials.

The California Bar has fallen behind the great majority of jurisdictions in respondent rights.

Friday, August 5, 2011

90th Installment. Behind the James Towery Ouster: California State Bar Gets Even Worse

Nobody quite knows why James Towery—the replacement for ousted extremist Scott Drexel—resigned on July 1, one year into his term as chief trial counsel for the California State Bar. Publicly, Towery blamed the resignation on the logistics of his commute from his San Jose residence, but the subsequent firing of four managers by the State Bar’s executive director, Joseph Dunn, convinced even David Cameron Carr, leader of the State Bar defense establishment, that the so-called resignation—precipitated by the California Senate’s failure to confirm after eleven months—was the beginning of a purge.

Yes, but who comprise the factions? Immediately following Drexel’s ouster, kanBARoo court surmised that the State Bar defense establishment spearheaded it. But the Towery purge wasn’t the prosecutory bar’s revenge. At issue—what to do about the huge backlog created by Drexel’s excesses (as well as some of Towery’s in the foreclosure arena).

Towery’s contention with the State Bar’s political leadership centered on the new rules, effectuated in January 2011. In his public comment on the proposals, Towery—while pretending a general sympathy with the rules—opposed all the major proposed changes:

  • Eliminate most discovery from State Bar court proceedings
  • Remove the Evidence Code in disciplinary proceedings, replacing it with the rules prevailing in administrative courts
  • Automatically disbar defaulting respondents

Towery submitted (verbatim) the following criticisms in August 2010 after the Board of Governors allowed extra time for public comment to allow the new chief trial counsel to submit a response:

  • As for discovery, each party should continue to be allowed at least one deposition of a nonexpert witness and without court approval;
  • Unlimited depositions of expert witnesses;
  • Parties should be allowed to take depositions of out-of-state witnesses;
  • Parties should have the right to unlimited depositions in reinstatement and moral character cases;
  • As for the evidence standard, reliability and predictability of evidence is best served employing the high standards and safeguards of the Evidence Code;
  • The relaxed standard of evidence would permit parties to offer large quantities of hearsay testimony and documents
  • APA hearsay objections can be lodged but not ruled upon until just prior to submission;
  • Outside training for judges and OCTC counsel may help with the undue consumption of time pertaining to evidentiary objections.

But these comments don't address the backlog. Towery's alternative for cleaning it up might have been the "fire sale on settlements" disavowed by Executive Director Dunn, an alternative bound to be unpopular with the State Bar's prosecutory wing—and wildly popular with the State Bar defense establishment (the "respondent bar," who participate in deliberations.)