kanBARoo Court. 24th Installment. What next?

To formulate a legal strategy, I had to determine whether I was dealing with a court, and, if so, from where emanated its jurisprudential imperatives. If the State Bar Court extinguished due process and not merely denied it, my arguments would be self-defeating, leaving “cooperation” with the State Bar the only viable tactic — meaning admit guilt, express remorse, and settle the case by stipulation. This conclusion would vindicate the State Bar defense establishment's method, at cost of vitiating the enterprise’s purported ethical significance.

The Hearing Department’s response to my motions posed a test, in which the prosecutrix screamed that my motions were frivolous, but the court never agreed. Although the Hearing Department was a court, it wasn't much of one. When the Hearing Department offered reasoning in support of decisions, the reasoning failed to take account of any of my arguments except as it misconstrued them. Yet the Hearing Department declined to hold my arguments frivolous and on two occasions granted my motions in substance.

Someone was watching the Hearing Department, but who? Only two possibilities lay in the Hearing Department’s chain of command: the State Bar Court Review Department and the California Supreme Court. The court building's architecture augured that the only honest review would come from the Supreme Court and portended that the Review Department functioned as much a part of an integrated State Bar as the Office of the Chief Trial Counsel and the Hearing Department, but the laws of group dynamics gave some hope that the Review Department and Hearing Department might split. The Review Department’s participation in the conspiracy, its joining the Hearing Department in kowtowing to the Chief Trial Counsel, was proven only when the Review Department's clerk conspired with the prosecutrix to falsify my petition to the Review Department, followed by the Review Department's issuing its denial on the merits, these events timed to occur on the eve of the Hearing Department's OSC. The conspiring Review Department clerk had previously refused to file the papers and announced she had destroyed them.

With the Hearing Department’s entry of my default, I have two options: 1) petition the Review Department to overturn the entry of default and failing that petition the California Supreme Court for review of the Review Department's decision; or 2) wait until the Bar Court enters its final judgment and then petition the Supreme Court for review. I can go immediately to the Review Department and from there to the Supreme Court; or I can go directly to the Supreme Court but only after waiting for the final judgment from the State Bar Court. Cases are rare in which a respondent goes directly to the California Supreme Court, skipping the Review Department. Nobody wants to wait for the announcement that the Bar Court proposes disbarment before challenging the decision.

My anti-waiver strategy compels waiting. Waiting for final judgment carries another advantage when a respondent challenges the notice of disciplinary charges, in opening up an additional basis for appeal, one still more compelling because the entry of default has draconian consequences that turn against the State Bar when it botches the notice of disciplinary charges. When the court orders entry of default, it deems admitted all facts alleged in the notice of disciplinary charges. The protections compare unfavorably with civil defendants against whom the court clerk has entered default. Defaulting civil defendants don't forfeit the presumption of non-liability, and the plaintiff must still prove a case, often to more exacting standards. Legal conclusions are not deemed admitted, even in the State Bar Court. Since the notice alleges scant facts, any judgment will become attackable as based on deeming legal conclusions admitted. The ambiguities in the NDC that made it unanswerable for me are at least equally unresolvable by the State Bar Court.

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KanBARoo Court. 15th Installment. PREDICT the Court's Ruling

TEXT of ACTUAL ARGUMENT FILED - Opposing Entry of Default

Stephen R. Diamond (State Bar No: 183617)Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
oshua Tree, California 92252
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In Pro Per

The State Bar Court
Hearing Department - Los Angeles

In the Matter of Stephen R. Diamond, No. 183617 A Member of the State Bar : : : : : : : : : : : : : : : Case Nos. 05-0-04605 et al.
Opposition to Motion for Entry of Default
1. Respondent substantially complied with the court's order to file a responsive pleading.
Ms. Lawrence pretends that respondent “failed” to file an answer to the NDC because he wants to prolong these proceedings. Lawrence not only makes this accusation but also states it as though it were an obvious truth. She has repeated this accusation so many times that it takes on the character of a big lie, seeming to warrant belief by virtue of its tenacity alone. What else could possibly drive a respondent to avoid responding to an NDC for 144 days besides enjoying disciplinary proceedings so much that he wants to prolong them?
The true explanation of respondent’s conduct need not invoke perverse or masochistic motives. Respondent resists answering the NDC because he thinks his objections to it are correct, and the operative NDC prejudices his case. He thinks proceeding based on so seriously flawed a pleading would do him irreparable injury and wants at least one court of review to consider his legal arguments. Respondent also believes that his objections have jurisprudential significance. Filing the NDC would moot any review, and the courts would never hear respondent’s general arguments.
Respondent has not “failed” to file a responsive pleading. He has not yet filed an answer to the NDC, but at each turn, he has responded by filing the logical next pleading. Respondent in most instances filed these documents promptly, and has a strong excuse for 2-day tardiness in attempting to file the latest responsive pleading, a petition for review. Since the court and opposing counsel received a service copy of that document, the court is aware that it represented a serious attempt at compliance with the court order that he file a responsive pleading.
Assuming for the moment, contrary to fact, that respondent’s inadvertence caused the clerk to reject respondent’s petition for review, the State Bar still has provided no grounds for a motion for default. When the State Bar filed the present motion, respondent’s petition was received but unfiled in the clerk’s office. At that point, respondent had not failed to do anything. Lawrence filed a motion for entry of default based on the possibility that respondent would default, where the Rules of Procedure require a defaulted respondent when counsel files the motion. (State Bar Rules Proc., rule 200(a)(2).) A motion that survives time limits by guessing the future cannot survive review for due process.
2. Deputy Trial Counsel Lawrence's severe misconduct has denied respondent a hearing before the Review Department.
A. Ms. Lawrence participated in the falsification of respondent’s documents received by the clerk to engineer their rejection for filing.
Even if the clerk’s rejection of respondent’s petition had really been caused by respondent’s inadvertence, such inadvertence would not justify taking a default. But respondent’s inadvertence did not cause the rejection. As shocking as it is, the rejection can be explained only by a fraud in which Deputy Trial Counsel Lawrence participated.
The clerk’s office rejected the filing for two reasons:
The proof of service lacked a signature; and
Four copies and an original were not included.
The astonishing fact is that neither of these reasons is true, and the details’ astonishingly distressing implication is that Deputy Trial Counsel Lawrence directed the clerk to falsify the record. Both my secretary and I checked the signatures and the copies. But respondent knows additional facts. Respondent sent out only a single unexecuted proof of service and mailed it to Ms. Lawrence. Respondent sent the opposing party an unsigned proof of service, as is his routine practice, according with law and logic better than the common practice of signing them all.
any lawyers, surprisingly, are unaware of this fine and ordinarily useless point of procedure, and I earlier surmised that Ms. Lawrence is among them. They think you need to sign all of the proofs, and finding hers unsigned, Ms. Lawrence must have immediately approached the clerk ex parte to obtain a filing rejection, Deputy Trial Counsel’s copy of the document plus proof of service in hand. The clerk then sent me the copy of the proof of service I sent Ms. Lawrence, representing it as the one attached to the court’s main document. She then promptly destroyed the documents. I know these facts are true, because the only unexecuted proof of service accompanying any of the items mailed was the one addressed to Ms. Lawrence.
B. The facts of this fraud are readily provable.
Fortunately, the document respondent sent Ms. Lawrence--hence the one the clerk returned him-contained the date, handwritten in ink. If these accusations are false, Ms. Lawrence can refute them by producing her unsigned copy of the proof of service. If her copy is not the one that the clerk returned, then she will have retained it as her file copy. Having committed this deceit, she will instead produce a duplicate copy of the document the clerk returned, on which the date entered will be tactilely distinguishable. Deputy Trial Counsel Lawrence has taken it upon herself to see to it that my case never reaches the Review Department.
3. Clerical hyper-technicalism violates decisional law.
Much of the litigation at the State Bar Court is informal, because designed to expedite the fast-paced processing of cases, serving to both protect the public and the attorney charged. Besides making fraud by a clerk particularly easy, the hyper-legalism of the State Bar’s proof of service rules stands in marked contrast and serves more to entrap respondents in errors than to expedite proceedings. The practice of disposing of all documents marred by minor error and requiring complete re-service collides with decisional law on the duties of the court clerk’s office. That law holds that the court should briefly retain documents having minor deficiencies. (See Rojas v. Cutsforth (2nd Dist. 1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].) No excuse can justify disposing of the documents when the respondent might reuse them. Respondents who have suffered major law office problems will often remain in strained financial circumstances and simply throwing away $20 of expense is not reasonable, where the Legislature intended to give respondents an opportunity to be heard.
My secretary subsequently asked the clerk if she checked the other copies for the proof of service. She said she had not, because she needed only to check the original. Since no document was marked original, she chose one arbitrarily and on that basis decided that the “original” did not contain a signed proof of service. The method is unreasonable, because a single signed proof of service, wherever found, proves service.
Distinguishing between State Bar routine practices and this clerk’s idiosyncrasies is unnecessary. Regardless of how she was inspired, what she and Ms. Lawrence did was unconscionable and indeed criminal. They have obstructed justice in the courts by trumping up a bogus basis to deny me a hearing by the Review Department.
4. Respondent seeks not delay but the earliest hearing of his motion to dismiss the NDC.
A. The State Bar caused the most serious delay.
Ms. Lawrence charges respondent with using delay tactics not simply to marginalize his arguments but to distract from her primary responsibility for delay. Ms. Lawrence’s large-scale time wasting occurred mainly through her filing an earlier motion to enter default. Respondent filed a motion to dismiss on September 4, and the Hearing Department noticed rejecting my immediately subsequent motion to reconsider on November 11. That is nine weeks for five weeks worth of judicial transactions. Ms. Lawrence wasted precious time because she filed an improper motion to enter default, refusing to recognize the egregiousness of her conduct and that no court could enter default on such facts as presented:
Respondent files the document;
Five days pass; and
Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.
B. Answering the loaded statements in the NDC would be prejudicial to respondent.
Respondent argued rigorously that the seriously flawed NDC does not state disciplinable charges. More attention now to the prejudicial consequences of proceeding on the NDC could help quell Ms. Lawrence’s baseless accusations concerning delaying tactics. The current NDC consists of a series of loaded statements, which assume the relevant predicates. To answer the NDC one would have to first unearth the suppressed predicates and then answer them, at the same time continually clarifying that one is not sidestepping the actual allegation. As Ms. Lawrence pointed out, the State Bar believes that respondent committed misappropriation, simply because the wrongdoers performed their deeds from his office, regardless of his knowledge, conduct, or precautionary measures. Were the State Bar confident of its theory, the Office of the Chief Trial Counsel could try the case immediately as a matter of law, because respondent admitted all the necessary facts under penalty of perjury in his original motion to dismiss the NDC: staff performed acts of theft from respondent’s office while there employed. In addition, respondent admitted potentially damaging facts gratuitously, conduct which should lead the court to question Ms. Lawrence’s accusations about dilatory conduct. How many dilatory respondents knowingly make gratuitous admissions under oath that give the State Bar its entire case, as conveyed by the State Bar’s handling attorney?
The NDC tries to cover all the bases. It vaguely alleges that respondent committed misappropriation “through” staff members to insinuate the State Bar’s theory of strict ethical liability, as described above. But the NDC does not read that way. It implies without actually stating that respondent ordered or ratified the larcenous conduct. Converted into questions, these allegations are such as could never be asked of a witness. Useful or undistorted information is not obtained by asking questions that assume the respondent’s guilt. The respondent simply cannot answer these questions. Nothing respondent could say could create a clear record.
C. Respondent will make any compromise to receive a hearing before the Review Department.
Every principle of fair play dictates that respondent should have his day before the Review Department. The rush to judgment without this element of due process can be justified on two grounds only: protection of the public and protection of respondent. The latter, respondent waives; if the court believes the public needs protection in the interim, respondent is prepared to make very great concessions in order to have his petition heard. The maximum protection the public could receive is respondent’s immediate involuntary enrollment as inactive. Respondent is prepared to accept this measure of immediate disbarment, if the court believes it necessary to protect the public, keeping in mind that respondent has not represented any client in the past two years and does not intend to do so. If necessary for public protection, respondent would stipulate to mandatory inactive enrollment in return for the State Bar’s relinquishing its resistance to hearing respondent’s petition for review and staying proceedings in the Hearing Department until the Review Department rules.
Respondent prays that the court:
- Approve a deadline for re-submission of the matter to the Review Department;
. Stay the case pending that review;
. Take measures necessary to prevent meddling with the court records by clerks and trial counsel; and
. Take interim measures it deems necessary to protect the public.
Dated: _________________________
By: Legal Research & Writing Service
Stephen R. DiamondDeclaration of Stephen R. Diamond Supporting Opposition to Motion to Enter Default
I, Stephen R. Diamond, declare based on personal knowledge that:
. I am a Member of the California State Bar, admitted to practice law before all the courts of the State of California.
2. I thoroughly inspected the documents immediately before they were mailed.
. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service mailed that contained an unexecuted proof of service.
8. I have not represented any clients in the past full year, except my wife in a common matter.
9. I do not intend to represent clients in the future.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
________________________________
Stephen R. Diamond, declarant
Declaration of Catherine R. Hoholik Supporting Opposition to Motion for Entry of Default
I, Catherine R. Hoholik, declare based on personal knowledge that:
1. I am secretary at Stephen R. Diamond’s Legal Research and Writing Service. I served and tried to file by mail the petition for review in this case.
2. I thoroughly inspected the documents before mailing them.
3. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service I mailed that contained an unexecuted proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
______________________________

Catherine R. Hoholik, declarant

END Document.

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kanBARoo Court. 14th Installment. Turning Point.

The California State Bar's Enforcement Division, Hearing Department, and Review Department share a common building, undermining any contemplated adversarial quality in their relations. The Enforcement Division and the Hearing Department reside on adjacent floors; the Hearing Department and the Review Department are on the same floor and share their clerical office. That office was the place where Deputy Trial Counsel Melanie J. Lawrence perpetrated a fraud against me and the court to try to defeat my petition for review. First, I'll describe what I know Ms. Lawrence did and why it is a serious wrong. Then, I'll set out how I know this account is factual and how I can prove it.

Ms. Lawrence meddled with the clerk's reception of my petition for review of my motion to dismiss and interfered with its filing. Specifically, she advised the clerk to reject my filing based on a supposed lack of a proof of service. Then, she created the appearance of deficiency by substituting her unsigned proof of service for the clerk's signed one to engineer a filing delay. Ms. Lawrence falsified a court document because she knows my legal position is correct, and she fears the review department will agree.

Ms. Lawrence committed two grades of moral turpitude. To distinguish them helps in perceiving just how despicable is Ms. Lawrence's conduct. In discussing the matter with the clerk, Ms. Lawrence breached a rule of legal ethics prohibiting ex parte communication. Counsel should funnel argument designed to persuade the court through authorized channels to avoid unfair influence and decisions taken without hearing both sides. Ex parte communication was the subject of the fifth installment, where I claimed these proscribed interactions must be prevalent but immensely hard to prove. State Bar respondents have alleged that ex parte communications violated their due-process rights, but without denying that ex parte communications pose a due-process issue, the courts have been unpersuaded of the ethical infractions.

Ex parte communication potentially denies a respondent due process but is far exceeded in its vileness by the second grade of moral turpitude. Ms. Lawrence colluded with or manipulated the clerk to dispose of the actual signed proof of service and to represent her own copy as the one I tried to file. This is frankly criminal conduct, and my being subjected to it could lead to a "dismissal in the interest of justice." This escalation might convince the Hearing Department, on the other hand, to avoid immediate embarrassment before the Review Department by entering the default Lawrence seeks. The fraud and my response to it in several motions and oppositions should prove a crisis point in the case, where the court either withdraws all confidence from the prosecutrix or closes ranks with her.

How did this prosecutrix become first proven ex parte communicator among the Office of the Chief Trial Counsel's minions? The proof itself is simple. I know I sent out only a single unexecuted proof of service, and that was the proof of service to Ms. Lawrence. I sent the court signed proofs of service but served the opposing party an unsigned one. This is my routine practice, according with law and logic better than the common practice of signing them all.

Many lawyers are unaware of this fine and ordinarily useless point of procedure, and I earlier surmised that Ms. Lawrence is among them. They think you need to sign all of the proofs, and finding hers unsigned, Ms. Lawrence ran for joy to her friend in the clerk's office. She handed the clerk the document and said it must be rejected for want of signature. Lawrence emphasized the rejection should be sent out that day, as the clerk mailed the rejection the day Lawrence received her service copy. The clerk accepted Lawrence's document as identical to the documents filed, packed them off to me, and disposed of the others.

If I am wrong, the prosecutrix can easily so prove by producing her unsigned copy of the proof of service. If her copy is not the one that the clerk returned, then she will have retained it as her file copy. Having committed this deceit, she will instead produce a duplicate copy of the document the clerk returned, distinguishable because, though unsigned, the proof is hand-dated.

Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.

KanBARoo Court. 13th Installment. The State Bar Gets Nervous

Pulling another trick out of the California State Bar's dirty bag, the Office of Chief Trial Counsel files another motion to enter default, notwithstanding my pending petition for review. The court (or “Hearing Department”) deserves blame for this frivolous motion, because the court emboldens the prosecutrix by mixing messages in orders. Judge Honn twice granted the substance of my motion or denied a motion I opposed. In each, the court pretended that the Bar prevailed.

The first installment treated one instance, a hearing where the court denied the Bar's motion to enter default and permitted me to file a motion for reconsideration. While upbraiding me in harsh generalities, the court granted my opposition’s substance. Yet, listening to all the criticisms directed at respondent, the prosecutrix did not carry away a cautionary message from her failed first attempt to take a stealth default.

In the second instance, the Hearing Department granted delay of my deposition until it ruled on reconsideration. Yet, in ruling in my favor, the Hearing Department styled its order a denial of my motion to continue the deposition notice. Again, Judge Honn ruled in my favor on the matter before him, while clothing the order in terms celebrating Deputy Trial Counsel's victory.

The court does not obfuscate orders merely to feed the prosecutrix’s ego. It intends respondent forgo taking encouragement. This is important because, for want of legal judgment, the Bar cannot count on weathering a litigation storm. Consider the frankly pathetic whining of Deputy Trial Counsel Melanie J. Lawrence, in trying to support her frivolous new motion for entry of default:

Trial in this matter is scheduled to begin December 17, 2007.If the regular time for response to this Motion is allowed, the deadline for a written response will be the same date the beginning of trial is scheduled. As it is, the State Bar has been severely prejudiced in trial preparation by the fact that no response to the NDC has been filed.

Ms. Lawrence's problem is that her astoundingly bad legal judgment wasted a lot of the Bar's precious time. Respondent filed a motion to dismiss on September 4, and the Hearing department noticed rejecting my immediately subsequent motion to reconsider on November 11. That's nine weeks for two motions, judicial transactions that should require only five. The State Bar lost its month because Ms. Lawrence refused to waive her right to proof of service. Proof under the circumstances was a purely technical requirement and one that the State Bar had already waived by accepting my document for filing. No court, not even the State Bar Court, could enter default on these facts:

1. Respondent files the document;
2. Five days pass; and
3. Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.

The prosecutrix behaved outrageously, and I admit it surprised me. She filed the motion and then spent weeks of valuable time waiting for the result. Why? She just did not know her motion stood not a chance. She believed she would prevail.

The Bar intimidates lawyers to suppress serious litigation, at cost to its attorneys' basic legal experience. What passes for litigation is quibbling about the time span for a suspension. Incidental errors also testify to the Bar's impoverished capabilities. While the prosecutrix wants the Bar to shorten time for responding to her motion, her motion can take at most a couple of days off the response deadline. Had the State Bar served its motion for default by overnight mail, it would have gained four days without court intervention.

Attorneys conducting a disciplinary defense against any of the state bar associations need to develop a case that challenges the State Bar on fundamentals, whether procedural or on the merits. The State Bar proves unequipped to deal with such challenge.

Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.

kanBARoo Court, 10th Installment. Law Practice or Law-Business

The State Bar's Notice of Disciplinary Charges intertwines without distinguishing two broad issues. The first is my administrative service contract's lawfulness. The second is my ethical responsibility for the fraud the service's staff perpetrated. The State Bar alleges that I am responsible for the fraud because it resulted from the arrangement's impropriety. The State Bar also alleges that I am strictly liable in ethics for the misdeeds of my staff. These Installments have considered strict liability in ethics and will focus on this important issue again, but legally, strict liability in ethics is a nonstarter for the State Bar.

I didn't anticipate staff fraud, yet I anticipated that my manner of contracting would collide with the State Bar. The relevant question: is an administrative services general contract unlawful? If the contract was lawful, charges that the contract facilitated the fraud do not state disciplinary charges, even if the contract increased those consequences' likelihood. I have the right to rely on my partners in contract following the law, provided I have taken reasonable care.

The Notice of Disciplinary Charges alleges that I formed a partnership contract for the practice of law with nonlawyers. Much of the NDC depends on this allegation. The NDC alleges that I contracted with persons defrauded by staff, "through staff." These defrauded persons were unknown to me, and I did not direct, approve or ratify the fraudulent staff practices. The theory that I operated "through staff" requires that staff function as my agent. General partners bear the requisite reciprocal agency relationship, although only in a civil context. I am not liable, even civilly, for the torts of my staff committed outside the scope of employment, but I would be civilly liable for the torts of my general partner undertaken in the name of the partnership.

The State Bar has ignored that my contract does not meet the statutory definition of a partnership. To state the best argument, where the State Bar itself supplied none, they might argue that the contract substantially satisfied the definition of a partnership agreement. A law governing law partnerships might hold only certain aspects of partnership strictly essential to the definition. Applying the criterion depends on distinguishing the primarily relevant partnership factors for the practice of law. The problem can also be approached from the opposite side. What disadvantages go with restricting the practice of law to forbid various quasipartnership agreements? To see the disadvantage of restriction is to see the case for narrowing the concept of partnership applied to law.

Traditional law practice, sanctioned by a broad antipartnership law, fills all three roles with lawyers: legal, administrative, and entrepreneurial. The condition restricts the small law firm more: in solo practice, one attorney must fill all three roles. How much legal talent is wasted where the lawyer lacks the other skills or aptitudes? How many incompetent lawyers do we suffer because, to get entrepreneurial talent, you often must sacrifice legal talent?

The conventional answer to this problem is that the legally talented, nonadministrative, non-entrepreneurial lawyer should become the employee or associate of a lawyer with the full panoply of skills. This is no solution; it means the best legal thinking is not in charge of cases' conduct. To get to the top, attorneys need a mix of the other talents, each in approximately equal proportion, leaving numerous low-legal attorneys in control of offices. The pseudosolution of hiring expertise leaves the actual control and ultimate responsibility for prosecuting and defending cases to some legally unable attorneys. My administrative services contract—delegating administrative and entrepreneurial responsibilities—created a service-delivery super-standard for a client community. The State Bar hates this kind of contract. In this, the State Bar freezes a status quo of 'law as business.'

Tight restriction of lawyers' quasipartnership agreements harms the profession in other ways. When a lawyer who actually controls an office must be a lawyer and a businessman, law becomes as much a business as a profession. The traits that inherently mark the businessman rather than the lawyer proliferate among the profession. Many of the disagreeable characteristics of lawyers owe to the personalities of businessmen. Businessmen want to be bosses — to boss other people around. The administrative side of the law office is the side where you order people about, hire them, and fire them. Often, power-hungry people aspire to this station.

The unity of law/administration/entrepreneurship, ensconced in a broadly interpreted anti-partnership law, inescapably picks a particular template for the lawyer personality. The profession should not foster this alien template, as essence or public appearance.

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kanBARoo Court. 8th Installment. Reply to Critics: An Overview

To be resolved properly, legal issues must be debated. Since little real controversy seeps into the California State Bar Court, I have tried to develop controversy on this blog. In further pursuit of controversy, I posted the 7th installment on the newsgroup misc.legal. Two attorneys responded, although they did not answer my invitation to post their comments to the blog. The thread is at http://tinyurl.com/2zaea3 Without taking unauthorized liberties by direct quotation, I shall deal here with those arguments going to merit.

I asserted that procedural issues concerning notice and due process were at the heart of my case. One poster said the merits of the State Bar's allegations were central. The distinction here is between "my" case and the State Bar's case. More substantively, the poster believes that the nature of the State Bar’s allegations (see 3rd Installment) is clear. The poster agreed with me on the pure question of law that conclusory allegations were insufficient to state a disciplinable offense.

The State Bar alleges that I misappropriated client funds. I maintain that staff members perpetrated fraudulent acts, but the misappropriation occurred without my knowledge, approval, or ratification and despite my supervisory efforts. The Deputy Trial Counsel and other State Bar officials maintain in correspondence that the attorney is liable for the acts of his staff. I would be happy to resolve this issue as a matter of law. It is crystal clear that the State Bar is wrong on the legal cognizability of strict ethical liability.

The State Bar knows it would lose taking a straightforward approach. The State Bar has oppressed many attorneys through its dogma of strict ethical liability. The Bar's successful history prosecuting under a legal theory unapproved by any court has made it arrogant in its private construals of law, but not so arrogant as to base a case on interpretations so jurisprudentially anomalous.

Instead, the State Bar Court's Office of the Chief Trial Counsel alleges that I performed the acts in question "through" various staff members. The Bar's formula is vague and conclusory with respect to the key issues, such as how did I engage and cheat those defrauded, "through" these staff members. Is the Bar saying what it believes, that I committed fraudulent acts, as a matter of law, because my staff did? Then their notice of disciplinary charges should state this legal theory, and it should not leave open the competing interpretations.

On its face, my committing acts of misappropriation through staff members would mean I instructed the staff members to engage the clients and misappropriate their money. But the State Bar refuses to state its meaning with particularity, by alleging that I instructed the staff members, had knowledge of their fraudulent conduct, or ratified it. An intermediate meaning sometimes mooted would hold I acted with gross negligence in failing to supervise my staff. If the State Bar so alleged with particularity, it would lose, as I can prove my active regard for securing funds my office received.

This failure to allege the charges with particularity characterizes the State Bar's quotidian functioning. It means one thing, states another, and hopes it can discover evidence of what it does not state. The State Bar misuses the notice of disciplinary charges to license a fishing expedition. It can support only its delusion-based theory that a lawyer is strictly liable in ethics (not civil controversy, remember) for the acts of the attorney's staff, but it refuses to state the theory and expose it to refutation.

This incompetent and oppressive pleading style allows the State Bar more than its fishing expeditions. It gets voluntary convictions and even resignations. Since the State Bar avidly tells respondents its private theories, most lawyers accept their guilt, based on an unlawful unpled theory. These attorneys compromise their cases, based on the State Bar theory of strict ethical liability. My defense stands for exposing and discrediting this deceptive and oppressive pleading practice.

Moving now to the comments of the other poster, he advises me to get rid of the blog, because of the self-defeating admissions it contains. I admit potentially damaging facts. Deleting the blog would be futile, because the blog merely quotes what I already filed. The poster is referring to a paragraph from my motion to dismiss the notice of disciplinary charges, quoted in the 3rd Installment, where I state:

Respondent hoped to test in practice his theoretical ideas concerning the effective delivery of legal services to non-mainstream cultures. If necessary, the enterprise would also test respondent's interpretation of rule 1-310 of the Rules of Professional Conduct, because of the contractual terms on which respondent ventured. J.B. Kim agreed to fund and staff the office operations and provide a skilled negotiator. Kim would report directly to respondent, and respondent would have ultimate control of the office and complete control of the practice of law within it. Respondent, viscerally averse to the mechanics of financial management and effectively incompetent in their execution, sought to delegate the operational responsibility for keeping the books, while maintaining a robust system to monitor Kim’s compliance.

The poster says that I admit I was a name for hire and unable to manage the law office. The "name for hire" is unsubstantiated and false, because I supervised the legal operation of the office and prosecuted my clients' cases. My financial-management incompetence is indeed an admission, made because I do not want to play a procedural game, even though in such a game, played against the California State Bar, I should expect to prevail. When some defrauded persons wrote me, I informed them that while I denied responsibility for their loss, they might have a cause of action against me for negligent staff supervision. But the Bar does not allege negligence. While a civil case so based might possibly be tenable, my financial ineptitude and my failure to appraise it or its implications accurately is not subject to State Bar discipline.

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kanBARoo Court, 7th Installment, My Defense in a Nutshell

The gravamen of my defense before the California State Bar Court is that conclusory notice of charges is insufficient to meet the pleading requirements of the State Bar Court's Rules of Procedure. (Rules Proc., rule 101(b)(2) & (3).)

My case's procedural form can conceal the core issue, right to notice, as a matter bearing on high policy, not only individual cases. If my experience is typical—and why should it not be, absent legal obstacles to deter the State Bar Court—then the modus operandi of the State Bar is to file the most general allegations, with no showing of how particular alleged infractions violate the rule or statute in question. The Office of the Chief Trial Counsel then launches a fishing expedition, where the respondent has protection inferior to that afforded in ordinary civil or criminal matters. This conduct defeats the purpose of initial pleadings and formal charges.

My case rests on two foundational premises, establishing pleading requirements in the California State Bar Court:

1. The California Supreme Court reprimanded the State Bar Court in a line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar of California (1990) 51 Cal.3d 609; Baker v. State Bar (1989) 49 Cal.3d 804 ; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968.). The Supreme Court offers commentary comical in its seeming futility. In each opinion, the Supreme Court inserts a frustrated remonstrance: "Once again we are constrained to call to the attention of the State Bar Court the importance of identifying with specificity both the rule or statutory provision that underlies each charge and the manner in which the conduct allegedly violated that rule or statutory provision. While petitioner here does not complain of any due process violation in lack of notice, this specificity is also essential to meaningful review of the recommendation of the State Bar Court."
2. The general rules of pleading that underlie the State Bar's Rules of Procedure are committed on principle to factual pleading.

The Supreme Court warned repeatedly that the State Bar provides insufficient notice when it fails to connect law and wrongful conduct. Yet, the theory has not been used by any previous respondent. The failure to apply the law after it has been set out points to the extremely low level of practice in State Bar Court defense. These installments discuss the causes.