98th Installment. The California State Bar seeks new oppressive pleading allowances—and the defense bar pretends to object

The official California State Bar “defense bar” bemoans the recently proposed formal curtailments of respondents’ right to explicit prosecutorial pleading, but in practice the bar court long ago abandoned its formal pleading rules. (State Bar Rules of Procedure, rules 101(b)(2) & (3).)  The defense establishment doesn't know because for years the official bar-defense attorneys have allowed prosecutors license in their vague charging allegations. Let any State Bar defense attorney name a case where they filed a motion to dismiss because the allegations failed by standards the Supreme Court repeatedly demanded that pleadings disclose not just the violated rule and the violating conduct but the manner in which the conduct violates the rule. (See Baker v. State Bar (1989) 49 Cal.3d 804 and predecessor cases.)

The bar court effectively repealed the pleading requirements because the bar-defense establishment had ceased raising them after the California Supreme Court tired of repeating itself and then drifted to authoritarianism. Granting prosecutors license has become part of the defense establishment’s grand bargain: preferential treatment for not rocking the boat. Because of its inexperience with real cases—those made real by challenging the State Bar’s central allegations rather than quibbling for a better bargain—the defense bar can’t even say what’s wrong with the expansion of the state bar’s pleading powers. The State Bar’s Chief Trial Attorney argues that it can restrict the rights of respondents to the bare necessities of notice pleading as practiced in criminal law, and the defense bar responds that this exemplifies the trend toward fewer respondent rights: “Brick by brick, procedural protections for  respondents in the discipline system are being dismantled.” But noticing a trend doesn't even rise to the level of counter-argument; it may even help justify. Noting a trend is the best the defense bar can do when it tries to muster an argument: no wonder it never dared argue for dismissal based on inadequate pleading!

Yet the argument that the new pleading rules are oppressive and illegal is straightforward. The Notice of Disciplinary Charges differs from criminal charges in the crucial respect that the answering party must affirm or deny each of the facts the State Bar pleads. The NDC isn’t just a pleading tool; it rolls pleading and discovery functions into one procedure. To require no connection between fact and charge violates respondents’ right to privacy under the California constitution by inviting arbitrary fishing expeditions. Even more importantly, to require answers to loaded questions, a State Bar norm, violates due process.