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.)

6 comments:

Anonymous said...

Perhaps it's because Towery, and the idiots at the OCTC who advised the RAD committee to adopt rules that violate B&P Code section 6001, which prohibit adopting anything from the Administrative Procedures Act without express approval from the legislature, and now open up everything they do to collateral attack because they are violating the State Bar Act, is why they were fired. Yes, Towery voiced a weak opposition to the new rules, however he should have told them they were forbidden to adopt the rules, not argue on the merits. Cameron should have also informed them of this, instead he whined that they shouldn't rather than inform them they are breaking the law. In addition, Towery allowed one of his deputy counsel, to write a article, which gives one MCLE credit, stating that respondents cannot assert the 5th, in express violation of B&P Code section 6085(e). See legislative notes of 1999, which Joe Dunn Voted for, which expressly allows the respondent the right to assert the privilege self-incrimination, which was reiterated in the CAL Supreme Court case Speilberg v. Santa Clara, which cited to Specvack. The OCTC are managing agents, and therefore, give notice to the State Bar that they are violating respondents rights, under 1983 claims. Yes, the State Bar set into policy, that they will violate respondents rights, which under the recent US supreme court case Connick v. ? is the only way one can sue a prosecutors office, and have it stick. Cameron should be charged with incompetence. On his website, he states that the State Bar is a "real court", not so, and advises clients that they cannot assert the 5th. Justice Baxter, stated that is not so, in the Spielberg case. Who knows what the hell is going on at the State Bar, anything Cameron says should be treated with the stupidity he espouses on his website. God help his clients.

Anonymous said...

Sorry for the typos, and grammatical errors, however, asserting the privilege of the right against self-incrimination was enunciated in the Spevack case over 2 decades ago. In 1999, when the Legislature restarted the Bar they were cognizant of the abuses of the State Bar and put into law these rights. Cameron was aware of this, because before 1999, he was part of the problem. These bastards belong in jail.

Stephen R. Diamond said...

The relevant part of Business and Professions Code section 6001 states: "No law of this state restricting, or prescribing a mode of
procedure for the exercise of powers of state public bodies or state
agencies, or classes thereof, including, but not by way of
limitation, the provisions contained in Division 3 (commencing with
Section 11000), Division 4 (commencing with Section 16100), and Part
1 (commencing with Section 18000) and Part 2 (commencing with Section
18500) of Division 5, of Title 2 of the Government Code, shall be
applicable to the State Bar, unless the Legislature expressly so
declares."

I don't find that the above language has ever been construed by the courts. So, you may have an argument, although I don't read the statute that way. It doesn't appear to preclude incorporating administrative law into the Rules of Procedure. The point seem to be that the Rules of Procedure govern—that they trump other provisions in the Business and Professional Code and Government Code where the Rules of Procedure apply.

You're correct about Spevack v. Klein (1967) 385 U.S. 511. A state-bar respondent is protected against criminal self-incrimination. But note, respondents are NOT protected against self-incrimination related to the Rules of Professional Conduct or the Business and Professions Code, where no _criminal_ liability is involved.

Anonymous said...

6085(e) states that the rights afforded in the Cal and US const. will be afforded in State Bar proceedings. That includes all rights afforded in the constitution, including the right against self- incrimination. This criminal rights were extended to state bar "proceedings". It's an oxy moron to extend rights to proceedings where crimes can't even be charged. Hello? It's what triggers the 6049,6050,and 6051 statutes of the state Bar act for the state bar to enforce a subpeona in order to force someone to take the stand. This was amended in 1999 to include these rights.
6001 specifically cites to govt. code sect. et seq. The sections in the govt. code that are specifically cited include the Administrative Procedures Act.

What part of "no law prescribing a mode of procedure"..."shall be applicable to the state Bar unless expressly authorized by the legislature" is unclear? The APA is part of the Govt. Code that is cited in the division you quoted.
Administrative law is codified by the statutes. It's not common law.

Rules of court[any court] cannot trump Statutes created by the legislature. the BOG is not allowed to violate the State Bar Act, which is codified by statutes 6000 -6199. That is what makes them void.

Anonymous said...

The specific section where the APA discusses what evidence can be considered under the APA is Div. 3, commencing at 11000 et seq.

Stephen R. Diamond said...

No oxymoron. The point is the respondent can avoid testifying when the testimony is such as to subject him to criminal liability. This is very settled. Read one of the cases you previously cited, Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704:

"The constitutional guarantee against compelled self-incrimination protects an individual from being forced to testify against himself or herself in a pending criminal proceeding, but it does more than that. It also privileges a person not to answer official questions in any other proceeding, “civil or criminal, formal or informal,” where he or she reasonably believes the answers might incriminate him or her in a CRIMINAL case. … [I]t is well established that incriminating answers may be officially compelled, without violating the privilege, when the person to be examined receives immunity “coextensive with the scope of the privilege”—i.e., immunity against both direct and “derivative” criminal use of the statements.

The whole pleading procedure in the state bar is presupposed on the absence of protection for non-criminal self-exposure. There's a lot that's very bad about the operation of the NDC (http://tinyurl.com/c4ao5t), but it's well-established that there's no inherent problem in requiring respondents to admit any guiltiness. Perhaps you were confused by some of the ambiguities in Spevack. But the U.S. Supreme Court clarified the limitation to criminal self-incrimination (per the actual language of the Fifth Amendment). (Douglas, who wrote Spevack) was the sole Supreme Court justice to interpret "self-incrimination" as broader than involving crimes.)

As I say, this law is well settled.

You also ask, "What part of "no law prescribing a mode of procedure"..."shall be applicable to the state Bar unless expressly authorized by the legislature" is unclear?"

It doesn't say that only the Legislature can prescribe rules for the state bar. It says the Legislature can prescribe rules for the bar only by specifically saying so, but it doesn't say the state bar is prohibited from establishing its own rules. To quote:

"No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies..." Procedures the state bar establishes for itself are NOT prescribed for "state public bodies or state agencies": the state bar is said to be a "public corporation sui generis," thus NOT a state public body or state agency.