Tuesday, July 10, 2012

Interlude 25. California Supreme Court weighs in for state-bar extremists: Time to turn to the federal courts

The California Supreme Court has taken the unprecedented step of returning 24 cases for harsher discipline. The Supreme Court would exceed its jurisdiction by expressly demanding an outcome, so it must order the bar court to “reconsider” the discipline or itself impose the harsher sentence. But the Supreme Court’s terse message was clear for all who could read, for two reasons: the Supreme Court cited the infamous Silverton decision; and most tellingly, the Supreme Court returned no cases in which the Bar Court had recommended disbarment. The Supreme Court wasn’t interested in reversing disbarments; it wanted a greater number.

Why didn’t the Supreme Court impose the disbarments itself? This way, it sent a clear message to the State Bar: we want you to do the dirty work; that’s the reason you exist! The State Bar immediately took the hint by petitioning to recall 24 additional cases, despite the patent illegality of this move. (State Bar Court Rules of Procedure, Rule 807(b)(2).) The one-sidedness of the Supreme Court’s intervention—tacitly urging greater harshness rather than justice—reassured the State Bar the Supreme Court would let it run untrammeled.

Only the patsies in the state-bar defense establishment contrived to construe the Supreme Court’s message as ambiguous. The state-bar-court system is their playground and their livelihood. Never do official bar-defense attorneys appeal to the federal courts. That would violate their silent contract with the Office of Chief Trial Counsel.

California lawyers should take the Supreme Court’s order—especially its omissions—as an official announcement that it will overlook unjust prosecutions and excessive verdicts. If there is any legal remedy for unjust treatment by the California State Bar, it lies in the federal courts—where official bar-defense counsel will never tread.


Anonymous said...

Read the judgement in Kay's case against the State Bar in Federal court where the court say it was the policy of the federal court to defer to the state in discipline proceedings. There is no relief coming from the federal bench.

Stephen R. Diamond said...


Your conclusion is very reasonable, but deference isn't absolute. I don't think anyone has argued in federal court that the Supreme Court’s special relationship to the State Bar,which functions as its administrative arm, creates a conflict of interest which incapacitates scrutiny. (Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative"]; Friedman & Gaylord (1999) Rooker-Feldman, From the Ground Up, 74 Notre Dame L. Rev. 1129, 1132 ["there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs"].

There are also equal-protection arguments that haven't been tried. (http://tinyurl.com/aeuv3s)

robert said...


If you don't understand the legal doctrine of the Younger abstention. Keep quiet. Granting a motion to dismiss can be overcome if the Defense Bar would file prior to an NDC being filed.

Stephen R. Diamond said...

I discuss Younger abstention in "50th Installment. Federal Jurisdiction & Issue Preclusion" (http://kanbaroo.blogspot.com/2008/10/jurisdictional-bars-and-issue.html)