tag:blogger.com,1999:blog-3526212276559221756.post4170122545700300048..comments2023-09-30T07:43:20.855-07:00Comments on kanBARoo court: 78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of reviewStephen R. Diamondhttp://www.blogger.com/profile/07165258952900481659noreply@blogger.comBlogger50125tag:blogger.com,1999:blog-3526212276559221756.post-71213694295481083412010-07-15T14:48:41.614-07:002010-07-15T14:48:41.614-07:00Kay is not longer eligible to practice law. The Su...Kay is not longer eligible to practice law. The Supreme Court suspended him for 5 years, three actual, with other conditions. They did so without comment regarding any of the issues raise herein.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-62861899900107041482010-05-26T14:59:13.807-07:002010-05-26T14:59:13.807-07:00"How can a "review court" review ch..."How can a "review court" review charges that the State Bar a]won't allow to be filed, and b] because it's not a court of general jurisdiction, has no authority to hear?"<br /><br />In reviewing the charges, the reviewing court deduces from the State Bar Act's omission the Legislature's <i>intent</i> to omit the claim. <br /><br />Bus. & Prof. Code, § 6075: "In their relation to the provisions of Article 6, concerning the disciplinary authority of the courts, the provisions of this article provide a complete alternative and cumulative method of hearing and determining accusations against members of the State Bar."<br /><br />A complete alternative method means everything done under the State Bar Act falls entirely under that act. A Member's claims against the State Bar arising from the State Bar's claims against the attorney are part of the resolution of the State Bar's claims against the attorney, at least where the relief sought directly concerns the State Bar's claims against the attorney.<br /><br />The courts hold the attorney's property rights in a discipline matter were balanced against the interests of the public in the due process inherent in the State Bar Act.Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-34332566611426742302010-05-23T11:56:34.070-07:002010-05-23T11:56:34.070-07:00Your comments in the 76th installments leave out o...Your comments in the 76th installments leave out one glaring omission re: original jurisdiction. While in admission cases review is the only issue, in disciplinary cases their the property right has already been established. No respondent can file a cross complaint, or seek redress of the violations the State Bar engages in, in violation of statutory rights granted by the State Legislature[negligence per se]. A defense is not equivalent, to independent claims of a respondents violations of an illegal taking of his property rights. The denial of a petition for review, doesn't even contemplate the failure of the ability for "their being no place to file such charges", ergo: the suit of Dec. Relief. How can a "review court" review charges that the State Bar a]won't allow to be filed, and b] because it's not a court of general jurisdiction, has no authority to hear?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-689307074402583602010-05-20T15:57:25.883-07:002010-05-20T15:57:25.883-07:00OK, I recall the cases, but I can only vaguely int...OK, I recall the cases, but I can only vaguely intuit your argument. Let's try this. Pretend you <i>are</i> a trial attorney, and state a careful, precise argument with point citations.Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-53673961872085605582010-05-20T13:06:19.556-07:002010-05-20T13:06:19.556-07:00U.S. v. Wunsch,(9th Cir 1996) 84 F.3d 1110,1119 an...U.S. v. Wunsch,(9th Cir 1996) 84 F.3d 1110,1119 and In re Anderson, 3 Cal State Bar Ct. Rt 775, 1997 WL 701350. <br />State what the definition of "disrespect of the court is." It's not based on a definition in the dictionary. The dissent in Wunsch even goes so far as to tie "offensive personality" to "interfering w/ the administration of justice." Anderson, states that in civil cases that means, denial of a party's right to a fair trial. <br /><br />This is why I keep harping on if there was not a finding that Ralphs was denied a fair trial, the State bar has no jurisdiction, absent some type of sanction or finding of contempt.<br /><br />In my previous comment I cited Anderson 1997 WL 101350, it should have read, 1997 WL (7) not the 1. Sorry for the confusion.<br />Please address Anderson and Wunsch.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-81694346863402653482010-05-20T11:00:37.556-07:002010-05-20T11:00:37.556-07:00You're right. I can't get it out of my hea...You're right. I can't get it out of my head. Under In re Anderson, 3 Cal state Bar Ct Rt 775, 1997 WL 101350<br /><br />Unless the state Bar is charging someone interfered w/Ralphs right to a fair trial, 6068(b) can only be invoked when the respondent makes false statements, the burden in on the State Bar to prove the falsity of the statements, and they have to be knowingly false and said w/ reckless disregard. It goes on to say they cannot use statements that can be considered hyperbole. <br />The State Bar admits that Ralphs received a fair trial, and their brief also admits, that the truth of the statements are irrelevant. So under Anderson the charges are not subject to discipline.<br />Please respond to Anderson.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-49312464943490361612010-05-19T22:28:47.378-07:002010-05-19T22:28:47.378-07:00This is another version of your previous argument,...This is another version of your previous argument, which you can't rid your brain of. Before, you said that the Bar Court was substituting itself for the trial court because disrespect of court was contempt in drag. Now, you say that the Supreme Court, in trying to exercise jurisdiction over a State Bar case, is conducting a civil-case review in drag, when it evaluates evidence from the underlying cases.<br /><br />You must grasp the conceptual error: similarities in procedure between different types of proceedings do <i>not</i> support the conclusion that the procedures are identical. Just as disrespect of court isn't contempt, so the testimony of a disqualified judge concerning the trial while that judge presided isn't changing the completed trial record or conducting a review of the civil case.<br /><br />Anonymous2 exploits such errors just like the State Bar: he treats a single mistake as the entire case. (With as little understanding, as he can't even paraphrase the State Bar brief he cites.) As you can see, a respondent's persistence in error helps the State Bar-establishment, just like it helps its Fanboy, Anonymous2.Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-15325190004940516922010-05-19T16:35:56.246-07:002010-05-19T16:35:56.246-07:00No one has answered my question. No one disputes t...No one has answered my question. No one disputes the personal jurisdiction of the Supreme Court over lawyers. However, there is a second prong, subject matter jurisdiction. The Supreme Court gave up the subject matter when it denied review for these cases. These cases are final, the orders,[or lack thereof] are also final. Nothing can be entered or decided re; these cases. Hearsay comments from disqualified judges cannot be turned into "retro orders" that are not in the minutes or the clerks transcripts.<br />Findings of fact re: motions that Kay's clients filed, and often prevailed upon, cannot be inserted into the record. <br /><br />What the hell is going on?<br /><br />Will anyone answer?<br />Can anyone?<br />How could Mr. Kay asserted anything other than on behalf of the clients? That is the question no one has an answer to.<br />Mr. Kay did nothing as a party.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-68356909563606071282010-05-19T16:10:06.522-07:002010-05-19T16:10:06.522-07:00So I made a mistake, e instead of y. Mea Culpa.
T...So I made a mistake, e instead of y. Mea Culpa.<br /><br />The question is: do you work for the Supreme Court? How do you know anything, as to what they will do? Not only don't you know the facts, you don't even know the applicable law. While I may not be a trial attorney, at least I know the applicable law. Your ignorance shows you don't know any discovery law, nor the code of evidence.<br /><br />How many Rules of Professional conduct have you violated by even commenting on this blog?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-72937678949062176352010-05-19T15:48:01.657-07:002010-05-19T15:48:01.657-07:00I don't know who you are, but you don't kn...I don't know who you are, but you don't know the facts. The State bar doesn't either. They weren't at any of the trials. As for Dalton and Oliver, you know he entered a ALD, and was dismissed. <br /><br />Your questions expose more than you know.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-26352330227055859752010-05-19T12:52:08.895-07:002010-05-19T12:52:08.895-07:00A reading of the State Bar brief pointing out the ...A reading of the State Bar brief pointing out the areas in which Kay is factually mistaken should be required reading.<br /><br />However, the Supreme Court will rule on his points. I suspect that they will not see much merit in his arguments. It's interesting to note that they left Dalton & Oliver off. A real question is did they make a deal with the State Bar? Anyone know the answer to that?<br /><br />BTW: It's policy not police.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-73411499957382362902010-05-18T13:35:51.939-07:002010-05-18T13:35:51.939-07:00If a person has been disqualified as a judge, and ...If a person has been disqualified as a judge, and can no longer be considered a judge for that matter, how do they testify? As a lay witness? As a matter of law, when a judge is disqualified, they are considered unfit to sit as a judge. re: that matter, and can no longer be considered a judge. The code section states they can no longer add anything to the record. Your cite only applies to people who can be considered judges. It's against the public police of CCP 170 et.seq. Not only are you an idiot, you're dishonest. In addition, the State Bar's brief states that the case law re: taking defaults while an answer is on file [ which is void], were written before the Discovery Act. That's a Bald face lie. The Discovery Act was enacted over twenty years ago. Heidary was written in 2002. You have problems understanding time. As far as I know we still live in the same time continuum. We haven't attained Star Trek technology yet.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-59569913666452089642010-05-18T09:03:39.068-07:002010-05-18T09:03:39.068-07:00I disagree. An example of the issues contained in...I disagree. An example of the issues contained in the State Bar brief is the specific code section allowing the judges to testify, in direct contradiction to Kay's brief. See evidence code 703.5(c) for the law in that area. There are more examples, but I don't have time to list all of them.<br /><br />Name calling doesn't work well in a legal argument. I have read their brief, filed in reply to Kay's Petition, and read Kay's brief, which by the way contains numerous typos and omissions.<br /><br />The point is that it appears that Kay is off base in a good many of his points. I don't have time to go through the entire set of points, but I suggest you read the State Bar's brief, which BTW isn't on line from the court, you have to go to the court to read it, unless someone has posted it, which I doubt.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-17167067498139995722010-05-17T18:07:57.007-07:002010-05-17T18:07:57.007-07:00Apparently the other Anonymous is perceptive: you ...Apparently the other Anonymous is perceptive: you are an idiot. An anonymous poster who proclaims the law without demonstrating any knowledge of it carries no credibility around here.<br /><br />We've all read the pathetic State Bar brief; I've dissected the arguments in these pages, which as a matter of fact, I know you haven't read.Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-5148178742872367822010-05-17T16:45:36.017-07:002010-05-17T16:45:36.017-07:00You need to read the State Bar's response to K...You need to read the State Bar's response to Kay's Petition. All of the law is contained there. <br /><br />If I had to guess, I suspect that Kay won't get the 5 year suspension, with 3 years actual, rather they are probably going to disbar him, and will use the two cases he filed in Federal and State Courts to justify their decision.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-49973273236907404712010-05-14T06:49:31.118-07:002010-05-14T06:49:31.118-07:00Question:
When the Supreme Court denied review in...Question:<br /><br />When the Supreme Court denied review in Gober v. Ralphs and Marcicz v. Ultrastar, they lost jurisdiction over the matter, it then returned to the trial court for entry of judgment. How does the Supreme Court through it's Administrative arm gain jurisdiction to "review" the record again?<br />No one is disputing personal jurisdiction over the advocate for these parties, however the record belongs to the parties, and all the pleadings are the "work product" of and for the parties.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-28096561339052697742010-05-07T14:08:36.010-07:002010-05-07T14:08:36.010-07:00If you read the decision in Kay, et al vs. the Sta...If you read the decision in Kay, et al vs. the State Bar filed in the U.S. District Court, you can see what the Feds are going to do with any claim brought by Kay after any action taken by the State Bar.<br /><br />Rather than post personal attacks, with name calling a discussion of the issues is probably a little more fruitful in these types of discussions.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-31833401430873689902010-05-05T17:28:43.081-07:002010-05-05T17:28:43.081-07:00"The other anonymous doesn't know the fac..."The other anonymous doesn't know the facts of anything."<br /><br />Although not for lack of trying. The other Anonymous—it's revealing how the legal profession goes anonymous when Commenting at a blog critical of the State Bar—is right that we need to see the documents if we're to discuss them. <br /><br />"Oh, and by the way, I'm not a trial attorney."<br /><br />Oh, I know that, and if you were, I wouldn't have said you made some typical trial-attorney errors. All of you Anonymice are entitled to your anonymity; I don't reveal information that would breach it.Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-25137469614467489012010-05-04T13:32:26.094-07:002010-05-04T13:32:26.094-07:00Only an idiot would draw such conclusions from the...Only an idiot would draw such conclusions from the ruling on the demurrer. It was granted solely on lack of the superior court having jurisdiction. The court did not disagree w/anything else. The State bar wanted the Court to make other findings. The judge wouldn't bite. As the judge said, to the state Bar, you don't want me ruling on these matters. The Judge admitted until there is an actual court order, from the Supreme Court, Kay hasn't been harmed. The decision is only a "recommendation". The Judge stated Kay's remedy is to file a suit in federal court after the ruling in the supreme ct. The other anonymous doesn't know the facts of anything. Oh, and by the way, I'm not a trial attorney.<br />The Judge also didn't disagree that Kay's due process rights weren't violated.<br />The Judge had no answer when posed with the admission the State Bar filed in their petition for review in the Jacobs v. State Bar matter.<br />The State Bar admits that the legislature did not give them power to "enforce their subpoenas", and that "they are required to seek aid of the superior court through the contempt process to enforce subpoenas." So, where does one go to enforce the rights the legislature granted to attorneys under B&P 6050, and 6051? You can't file a lawsuit in the Supreme Court.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-1041483153266197282010-05-04T09:40:08.722-07:002010-05-04T09:40:08.722-07:00If all of the above arguments had any validity, th...If all of the above arguments had any validity, the Superior Court in San Francisco would not have sustained the defendant's demurrer without leave to amend. For an accurate description of the legal argument, someone should post that demurrer.<br /><br />The real question is whether the Supreme Court is going to disbar him after all of these motions, filing of suit, etc. Remember suing the State Bar in Superior Court was the second time he'd sued them, the first time was in District Court, and that got dismissed rather quickly.<br /><br />It's a shame, he's a tremondous talent, but the courts aren't going to tolerate this behavior, I suspect.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-62309951918660878292010-05-03T11:53:51.054-07:002010-05-03T11:53:51.054-07:00Provide full cites to Anderson, Kittrell, and Carr...Provide full cites to <i>Anderson</i>, <i>Kittrell</i>, and <i>Carr</i>. Then I can address your comments. (One of the sly tricks unique to the California State Bar system is that Bar cases aren't in the standard court reports. This gives State Bar prosecutors and State-Bar-establishment defense counsel [former State Bar prosecutors with benefits] a one up on anyone who doesn't pay the substantial separate subscription fee.)Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-23285127604336018612010-05-03T06:52:01.056-07:002010-05-03T06:52:01.056-07:00O.K. the State Bar can charge someone w/ disrespec...O.K. the State Bar can charge someone w/ disrespect of court. How do they prove it w/o a charging order, from the court?<br />Trial transcripts of colloquy between judges and attorneys who are not parties to the underlying action are inadmissible hearsay. See. In re Kittrell, In re Carr.<br />Absent an Order of some kind, memorializing what was said, how do you get in competent evidence, w/o waiver of the respondent?<br />Are you saying the State Bar can just go through a transcript and pick out anything they want, [they didn't witness anything] and declare it disrespect based on their reading of words?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-68899553890360368772010-05-03T06:30:41.757-07:002010-05-03T06:30:41.757-07:00Read In re: Anderson.
Nuff said,Read In re: Anderson.<br />Nuff said,Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-15763563852684806242010-05-02T22:53:38.071-07:002010-05-02T22:53:38.071-07:00(Continued from previous comment)
Unfortunately c...(Continued from previous comment)<br /><br />Unfortunately calling it ridiculous is the pounding of the table that a trial attorney performs when without the law or facts. Willfulness is an element of contempt, and it must be established to satisfy the applicable standard of proof, to clarify your immense confusion in the third post where you draw distinctions irrelevant to the discussion. So, you still haven't taken into account the different standards for proving the willfulness element of contempt (sometimes beyond a reasonable doubt) and the disrespect-of-court State Bar rule (clear and convincing evidence). My hypo does make the point, if only you'll attend to it instead of warding off the unpleasant truth.<br /><br />Finally, the fourth item: "The only question decided by the State Bar was that a “formal proceeding” should not be instituted against appellant."<br /><br />You use this to try to prove that "Their charge is whether discipline is required for an offense" which you counterpose to "prosecuting contempt." First, the quote doesn't deal with the State Bar's "charge" but only what the State Bar in fact had decided in the case at hand. In that case charges had been dismissed, and the court is saying it decided nothing more. You have to read the cases objectively, not fitting them to your preconceived agenda. You may then develop an <i>argument</i> that suits your agenda, but it's harder work than you can realize when you read so subjectively that you end up having no idea what the case really says.<br /><br />This isn't really a hard question. The fact is, if the promulgators wanted to make a contempt conviction a precondition for finding disrespect, they could easily have said so. Try on this actual rule of statutory construction: different words imply different concepts. Since the Legislature and rule-promulgators used a different term, "disrespect for court" versus "contempt of court," for the State Bar infraction and the exercise of CCP § 1209 power, the two are <i>not</i> the same offense, and code and case references to section 1209 don't limit State Bar discipline for disrespect of court.Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.comtag:blogger.com,1999:blog-3526212276559221756.post-20833119782697558622010-05-02T22:53:15.975-07:002010-05-02T22:53:15.975-07:00Regarding your first and second points, starting &...Regarding your first and second points, starting "with regards to any other tribunal reviewing grounds for contempt" and "these charges are the ones that were dismissed in the Richard Fine matter, for lack of a findings by the underlying courts":<br /><br />Your first example, where the superior court dismissed the contempt and the State Bar petitioned to force a contempt trial, is irrelevant. Its your same confusion over and over—you determine that some limitation on contempt pertains to a State Bar rule on a contempt-like infraction. Nevertheless, if someone actually had contempt charges dismissed, I would recommend arguing against State Bar charges on that basis. It's a losing argument but not beyond the pale. But you over-reach when you extend this to situations where contempt was never formally contemplated at all by the trial court. <br /><br />The second example, Fine's allegedly frivolous petition to the Court of Appeal, the key basis lies in the sentence that comes immediately after what you quoted: "Thus, we do not find there is clear and convincing evidence that respondent's appeal...." If the Court of Appeal denied sanctions, it's impossible to claim the evidence for the infraction is clear and convincing. This doesn't make the imposition of sanctions a precondition. <br /><br />The third point, starting "last but not least, your Hypo, lacks clarification. Cite for contempt or charging order v. order or "finding" of contempt"<br /><br />Here you show the amateurish tendency to make express distinctions actually clear from the context and that bear no relationship to the issue under discussion (coupled with not making the necessary distinctions). But apparently you realize that these points are more a display of pomposity than of analysis because you manage to get the point and answer directly in final post:<br /><br />"That somehow a judge who can't write an order that would sustain a writ of habeus corpus or certiorari re: direct contempt, gets to go whining to the State Bar is ridiculous..." <br />(continued next comment)Stephen R. Diamondhttps://www.blogger.com/profile/07165258952900481659noreply@blogger.com