kanBARoo Court. 22nd Installment. Can you tell victory from defeat?

Notice of entry of default was served on me yesterday, a result almost all correspondents, including some sympathetic and smart lawyers, consider a legal disaster. In similar vein, sympathetic readers criticize this blog as self-defeatingly defiant. They attribute entry of default to this defiance — correctly, now that I know the harsh result's antecedents. For the first time, prosecutrix Melanie J. Lawrence — the evening before the OSC hearing — downloaded my blog. Lawrence read the installments systematically from first to last, spending three to five minutes per installment. Adding to the data tracking the prosecutrix, her chief witness, Scott A. Meyers, Esq., read my blog the next day for more than an hour.

These events accomplish my tactical purpose, ignored by critics, their analytic blind spots my expository shortcomings. I may be partly forgiven because enemy anticipation allows some tactics less effect. The hidden tactic plays to an adversary's irrationalities, a well-known principle of warfare originating with Sun Tzu, who said if the enemy is quick to anger, provoke him. I learned the State Bar was quick to anger after I responded to State Bar Investigator Thomas Layton's advice to resign by informing him he had engaged in the unauthorized practice of law. The State Bar is accustomed to malleable respondents expressing actual guilt or feigned remorse, and frustrating the State Bar's expectations provokes its wrath. Sun Tzu's insight inspired me to shower the State Bar with provocative writings.

Another undermentioned strategic premise concerns probable source of relief, unlikely from any quarter below the California Supreme Court, destination of my notice of the NDC's insufficiency. Prevailing on that issue wouldn't end the case, as might the review portending, since the leading issue has changed to wrongful entry of default, a favorable change this sequence shows:

1. I move for an immediate stay and reconsideration of the Order to Show Case (OSC).
 

I mail this motion personally to the judge, including proof that Lawrence twice perpetrated fraud on the court and might continue her criminal misconduct.

2. The State Bar moves for sanctions, entry of default; it opposes my motion for reconsideration and request for a stay.

In its papers, the State Bar complains about my "waging a campaign against DTC Lawrence," but it admits that Lawrence received an unsigned proof of service. Lawrence fails to state that she can produce it, proving my allegations by the omissions rule.

3. I don't file oppositions to the State Bar's motions.
 

I contend the judge violated my federal and state due process rights by not acting against fraud and that I can't rely on the clerk's office while disputing its reliability. On the facts presented, moreover, the court is unjustified in concluding that I failed to file the motions, because it is as likely that oppositions were subjected to tampering after their actual reception by the State Bar Court clerk. The judge ignored this obvious likelihood.

4. The Review Department denies my petition for review in formulaic terms, while first granting my motion for relief for late filing.
 

Entitled to apply for a stay, I was denied this opportunity because the Review Department didn't inform me it was considering the papers, and instead of mailing a notice of filing, the court clerk mailed a rejection for filing, informing my secretary of the papers' disposal.

5. The judge orders the clerk to enter my default for not answering the notice of disciplinary charges, putting me out of court in the Hearing Department and Review Department.
 

The judge denies my motion for reconsideration of the OSC and request for a stay — at the OSC itself, weeks after I made them. While the main basis for the stay and the reconsideration concerned the criminal misconduct of Deputy Trial Counsel Lawrence, the Court doesn't mention these allegations in its orders and announces no findings of fact. The Hearing Department doesn't want me to take these facts to the Supreme Court. These oppressive, irascible bureaucrats were provoked by my blog — newly discovered on the eve of the OSC —allowing me to build a petition for review on denial of due process of 5th-and-14th-Amendment proportion, Supervising Judge Honn participating in the coverup.

kanBARoo Court. 19th Installment. Precedent, Waiver, and Legal Strategy: The Office of the Chief Trial Counsel Goes Berserk

California State Bar Court respondents must be especially careful of the intra-case precedents they set, especially waivers, as a respondent can reserve fewer rights against waiver than a criminal or even civil defendant. A criminal defendant's protections are well known, including the exclusion of probative evidence unlawfully obtained. The criminal defendant doesn't waive evidentiary objections by proceeding. None of these rights is afforded the State Bar respondent. Even the civil defendant comes out ahead of the Bar respondent with respect to one crucial difference, which magnifies the likelihood of inadvertent waiver. Although a civil plaintiff can modify a complaint by amendment, 1) the lateness must be excused; and 2) the amendment must not change the cause of action's basic nature. Neither of these protections is available in the State Bar Court. The notice can be changed at any time, even if the reasonably available evidence would have allowed earlier pleading; and no limitation applies to fundamentally changing the charges. If respondent proceeds based on a defective notice of disciplinary charges, any inculpating information gathered under that defective document’s banner retains its full force, regardless of the notice's fate.

The strategic implication, invariably missed by the State Bar establishment defense attorneys, is that failing to assert crucial procedural rights whenever tested loses them. By corollary, I will not answer the notice of disciplinary conduct unless I have exhausted my options to challenge it. Since the Bar Court rules are vague, incomplete, unrefined, and untested, my points and authorities argue rule construction, sometimes reaching public policy. Last Friday provided another opportunity to implement this anti-waiver strategy when the prosecutrix filed a new (third) motion to enter default for failing to answer the notice of disciplinary charges, to which I will eschew filing an opposition. Any application or counterapplication to the court now risks mooting my request for an immediate stay and waiving my objections that the clerk’s office has become unreliable. Since the clerk’s office is unreliable, any filing introduces an uncertainty for me, a litigation burden that no duty requires carrying. Refusal to accelerate the proceedings artificially by prematurely answering the notice of disciplinary charges also pressures the court to rule for a stay, to avoid its own befuddlement while it investigates the clerk's office.

The factors allowing me to prevail are 1) the fundamental strength of the pleading theory, forcing the Bar Court to treat it seriously; 2) the severe misconduct of the Office of the Chief Trial Counsel; and 3) taking advantage of the prosecutrx's misconduct, by consistent refusal to waive procedural flaws. The State Bar of late has followed the opposite course. More descriptively, the Bar has gone berserk. So far from consistency, it has now filed two incompatible motions: a motion to reconsider the denial of its motion for default and, before that, a new refiling of the original motion. An improper motion for reconsideration is ordinarily sanctionable, as is remaking a denied motion. While the law grants an over-used right to plead contradictory legal theories, it does not grant the right to proceed on a procedural contradiction. It is one or the other, a motion for reconsideration or a motion proper. The Office of the Chief Trial Counsel improperly burdens the court and opposing party with contradictory procedural forms. In my 11 years of practicing law and supplying legal theories to litigators, I have never before seen the procedural presumptuousness as involved in filing for reconsideration when the underlying motion is pending.

My novel strategy frightens the State Bar. The Bar's power to move for entry of default and involuntarily enroll Bar Members as inactive goes to the heart of its unfair advantage. Without it, the State Bar’s trial counsel would have to practice law, a prospect most alarming.

To understand this blog:

• Read Installments 1-3, 5, 7, and 14 first, in that order; then follow your interests; or
• Follow your interests, and make liberal use of hyperlinks.

kanBARoo Court. 18A Installment. The State Bar's Pre-Trial Statement & My Letter to the Court

A bonus accruing from the Hearing Department's abruptly vacating all the trial dates is that I received a premature copy of the State Bar's Pre-Trial Statement. Here is the State Bar's official view the charges, incorporating, as expected, all the ambiguities of the notice of disciplinary charges and expressing its oblique theory of strict ethical liability.
_______________

In this matter, Respondent is alleged to have formed a partnership with a non-attorney to form and operate a personal injury practice. After doing so, the non-attorney, Jae Bum Kim, and a number of employees he hired, engaged in the unauthorized practice of law, by, among other things, signing up clients and negotiating settlements with little or no supervision from Respondent.

Respondent is alleged to have created the environment in the office in which the staff engaged in the unauthorized practice of law. Then, he is alleged to have, among other things, failed to notify the clients of the receipt of settlement funds, failed to maintain client funds in a CTA, failed to respond to the clients, caused or permitted settlement checks to be endorsed and negotiated without the client's knowledge or consent, failed to pay medical liens, and failed to release client files.

__________________

An irony is that the prosecutrix's recent attempt at fraud on the court was assisted by clerks, for whose conduct the Presiding Judge has ultimate supervisory responsibility. My cover letter to Judge Honn, conveying the news of the prosecutrix's deceit, reflects this irony:
__________________

Attn: Judge Honn
PERSONAL AND CONFIDENTIAL
Dear Judge Honn:
My case began with a conspiracy of clerks, who among numerous other deceits, filtered from my mail any inculpating correspondence . It appears that you too are victim of a conspiracy involving clerks.
I am communicating ex parte out of dire necessity. DTC Lawrence, colluding with at least one court clerk, has inter-meddled with the court records to cause the rejection or other deflection of filings. The documents enclosed have been mailed for filing and served in proper fashion. If they suffer the fate of my opposition to motion to enter default (December 12, 2007 order), I know of no other way than direct communication to bring the problem to the court's attention.
Yours truly,
Stephen R. Diamond

kanBARoo Court. 18th Installment. The prosecutrix creates an opportunity.

To understand the opportunity the prosecutrix's crimes create, you need to understand something of how the Office of the Chief Trial Counsel is related to the courts, starting with how the courts are related to each other. In adjudicating disciplinary cases, the Hearing Department of the California State Bar Court sits as a trial court, finder of law and fact. The Hearing Department is subject to review by the Review Department, another component of the State Bar. The Review Department, in turn, plays the role of the Court of Appeal, affording final-judgment appeal and interlocutory review. Finally, the California Supreme Court stands in the same relation to the Review Department as it does to the Court of Appeal, and provides selective appeal and review by writ of certiorari.

Each court is deferential to the one below. In weighing the evidence, there is no recourse against the Hearing Department, just as there is no recourse against a civil judge and jury in matters of pure fact. This is nothing exceptional. If the limitations of review jar, they should no more than civil review limitations, which often surprise clients and students of the legal system, but the jury's role in determining most of the facts in most of the cases offsets civil review's protective limitations.

While the relations among the layers of judicial hierarchy are unexceptional, the relationship between the Hearing Department and the Office of the Chief Trial Counsel is shocking in practice and undefined in law. In practice, the Hearing Department is just as deferential to the Office of the Chief Trial Counsel as any appellate court is required to be toward the court below. On any question of fact, the Hearing Department will believe the evidence presented by the deputy trial counsel, provided the Bar has any substantial evidence at all. The Hearing Department, itself part of the State Bar, decides any issue requiring weighing the evidence in favor of the State Bar. In law, the U.S. Supreme Court has long held that the right to practice law can only be taken away by due process, and California accepts attorney discipline as subject to due process. But as to the requirements for neutrality of the State Bar Court from the Office of the Chief Trial Counsel, the law contains no specifics. The State Bar, with its absence of rules dictating court neutrality, contrasts with California's administrative courts, where the judge and the prosecutor must satisfy minimum requirements of arms-length distance, construed to exclude ex parte communication between them.

Thus, it is not clear that the good cop bad cop relationship between the California State Bar prosecutorial and judicial subagencies is unlawful, and the Hearing Department finds it perfectly clear that this collusive relationship is entirely proper. It does not even try to hide the collusion, and the system is, in fact, structured so many key decisions are made entirely by the prosecutorial branch. Does an investigation occur—where you must participate; are charges brought—where you must answer, submit to discovery and be tried—all of these decisions are made in the Office of the Chief Trial Counsel. There is no arraignment; there is no summary procedure. There is no barrier whatsoever standing between a respondent's answer to the notice of disciplinary charges and going to trial. Until then, the charges are tested against nothing beyond themselves, the law, and logic.

The Office of the Chief Trial Counsel has power to decide the cases it prosecutes, a power unequaled by any criminal prosecutor, by virtue of that office's judicial decision-making. All the court knows of my case, all that justifies its jurisdiction over me, is what is contained in the notice of disciplinary charges, the pleading the Office of the Chief Trial Counsel prepared. The court has seen none of the evidence; it makes no evidentiary ruling until the trial itself. On the say-so of the Office of the Chief Trial Counsel, it unrebuttably presumes probable cause for the charges. The court believes this because it must take the word of that office, both to tell the truth about the facts it recites and also to correctly weigh their import. At trial, the court would continue to accept the prosecutrix's weighing of these facts, even when finally requiring some justification for their assertion.

The Office of the Chief Trial Counsel at once comprises the State Bar's police, prosecutor, and lowest court because the Hearing Department actually functions as a court of first appeal, showing deference to the Office of the Chief Trial Counsel, as the rules require, while carrying its deference beyond the point the rules strictly dictate but do not prohibit. With such judicial power, the character and honesty of the deputy trial counsel or of the entire Office of the Chief Trial Counsel is just as relevant to the propriety of the proceedings as the honesty of a judge. Just as finding that a judge had been bribed would create a mistrial, so the discovery that the prosecutrix is ready to commit a felony ungrounds her preparatory work, challenging the bona fides of the charges themselves. Apparently recognizing the possibility of some such outcome, the rules contemplate a motion to dismiss in “the interest of justice.”

Even before this misconduct surfaced, the court began to turn against the prosecutrix. Her motion to enter default lost with prejudice. The court vacated the trial date and ordered the next hearing in more than two weeks, clearing the way to my filing a petition for review. At the hearing, he asked for extensive briefing, keeping the prosecutrix at great disadvantage. All cops hate "paperwork." Of course, the court continued to disguise these concessions with moralizing as to how denying the motion to enter default "did not condone respondent's conduct." This was before the court had notice of the prosecutrix's most recent conduct.

The case has gotten to this point, I claim, because of the strength of my legal theory. The causes may seem otherwise. What does a pleading theory have to do with the prosecutrix's criminal acts? The legal theory, in the first place, was a pre-condition for eliciting them. Had my theory been frivolous, the Hearing Department would have so pronounced it when it ruled on my motions, weakening my position. Had it been frivolous, no one would have feared my bringing it to the Review Department. The prosecutrix's excesses would have been unnecessary.

By 'legal theory' I mean more than the pleading theory. Legal theory includes an analysis of the legal strategy pursued by the Bar and developing a viable counter-strategy. The strategic consideration was recognizing that the way the Bar Court dealt with legal arguments is to support the Office of the Chief Trial Counsel in forcing the case forward and then using these events to moot the legal objections. This was evident to me at the first hearing I attended on September 4, 2007, when the court suggested that the prosecutrix and I might agree to decide my motion to dismiss at the same time as the case went forward. The Bar Court would delay ruling on some motions despite the prosecutrix's sense of urgency, obviously wanting to sink my objections under a wave of ongoing discovery. Thus, the Hearing Department waited 11 days to rule on my motion for reconsideration, during which time my deposition supposedly proceeded. The Bar tries to compel respondents to submit to deposition, as objecting can justify the clerk entering respondents' default and the court deeming the dilatory conduct an adverse sentence-affecting factor.

To the Bar Court's own delaying tactics, I responded in the only logical way possible. I refused to proceed further, except to the next pleading, basing that refusal legally on mooting colorable objections. I gave the State Bar what it was begging for with its hypocritical delays: I froze the proceedings at the pleading stage.

To best understand this blog,

• Read Installments 1-3, 5, 7, and 14 first, in that order; then
  
• Follow your interests; or
  
• Read the current installment.

kanBARoo Court, 5th Installment, Good Cop, Bad Cop at the State Bar

In prosecuting a State Bar case, the California State Bar's Office of the Chief Bar Counsel plays bad cop, and the Hearing Department of the State Bar Court plays good cop. These departments of the California State Bar work in concert. Not that they admit the complicity, but neither do they otherwise take any pains at concealment. Collaboration is evident from the timing of the court's processing of the papers: the way the Hearing Department expedites those matters and only those matters whose expeditious handling serves the Office of the Chief Trial Counsel.

A recent example. I was promised — more precisely, threatened with — expeditious handling of my motion for reconsideration of the State Bar Court's denial of my motion to dismiss the Notice of Disciplinary Charges. Eleven days passed after parties completed all filings. So much for expedited handling. Sometimes the opposite of expeditious handling serves the Office of the Chief Trial Counsel. Here, the State Bar Court aided that office to try to proceed to deposition before my motions tested the NDC. The court tried to give the Office of the Chief Trial Counsel the fishing expedition it wanted. If the Hearing Department decided it had to grant my motion to dismiss — the Rules of Procedure and at least six Supreme Court decisions directly require it — the Hearing Department would help the Office of the Chief Trial Counsel place another NDC in its stead. The Hearing Department would try to make sure the Office of the Chief Trial Counsel had the facts it needed, by allowing their collection before the case is at issue. The Hearing Department tries to minimize the respondent's rights, within the scope of reasonable minimization of the probability of reversal.

I had turned the legal tables on the State Bar, however, by basing my opposition to the motion to compel on the NDC's pendency. My opposition to the motion to compel arrived at the State Bar offices this Monday. That same day, the court issued its denial of my motion to reconsider. This rate of response is not a typical Hearing Department response rate; never, ordinarily, on the same day. I cannot explain timing so responsive, except where the Office of the Chief Bar Counsel pointed the Hearing Department to my connecting the two pleadings.

These observations may fall short of the standards for admissible evidence, but the prior question is: do the usual rules against ex parte communication actually govern the State Bar? To the contrary, do the judges of the Hearing Department regularly confer informally with State Bar counsel? Are they then violating any rule or statute; do they know it?

Besides the obvious nexus between these two departments of the State Bar Court, aspects of public policy that actually encourage ex parte communication between these departments provide another reason to doubt the State Bar feels constrained to avoid ex parte communication with Hearing Department judges. In Los Angeles, the Office of the Chief Trial Counsel and the Hearing Department of the State Bar Court reside respectively on floors four and five of one office building. Without knowing which, one must question either the wisdom or the intent of such propinquity. The physical arrangement alone bespeaks an enormous public-policy confusion and indecision regarding State Bar Court judges' independence from the Office of the Chief Trial Counsel.

An additional policy nexus between these departments of the State Bar — Hearing Department judges have been known to receive jobs as Chief Trial Counsel, the judges themselves seeking out the job change, because they consider the prosecutorial position a promotion. The Chief Trial Counsel is the quarterback of the State Bar team.

Decisional law construing administrative law guarantees an independent hearing in an administrative law court. The Supreme Court based that guarantee on its interpretation of relevant Government Code sections, which established standards for administrative law courts. The State Bar Court, similar in function to courts like those charged with disciplining physicians, has the trappings of an administrative court. However, the State Bar Count is not an administrative court; to the State Bar court, the laws governing administrative courts do not apply, and the decisional law interpreting those statutes does not apply. For the State Bar Court is a sui generis organization, from which status stems a considerable part of its mischief, as no well-construed body of law regulates it. Nowhere in the general appellate case law do you find any holdings imposing (or denying) the right of a State Bar Court respondent to enjoy freedom from bias by private communications from the Office of the Chief Trial Counsel. The Rules of Procedure of the State Bar Court expressly exclude the Government Code and the Code of Civil Procedure from applying to Bar case. A review court typically invokes those bodies of code in finding error due to ex parte communication.

In totality, however, the State Bar's governing law clearly bans ex parte communication with the judge, although no procedure is in place to effect that ban or even to reiterate it. For although the State Bar is charged with enforcing the Rules of Professional Conduct, in its own practice the Enforcement Division is particularly prone to ignore them. Rule 5-300(B) states that "A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer … " We on the outside of the State Bar Establishment, however, have no way of knowing whether the State Bar often abides by this rule or regularly breaches it. From appearances, it not only breaches the rule but also is aware of the transgressions only to such a degree that it refrains from admitting them. The State Bar takes few pains to keep the collaboration opaque to inference.

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