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

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

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

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

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

kanBARoo Court. 30C Installment. Why the Supreme Court wants to avoid discipline cases and what to do about it

A level of balance between attorney property rights and public protection constitutionally determines the due process accorded State Bar respondents, but the State Bar suffers from an inefficient mix of measures fostering reliability of judgment and favoring speedy case resolution. One example is Business and Professions Code section 6007, which insists on immediate implementation of the State Bar's recommended judgment. Although a mere recommendation, the Hearing Department's disbarment sentence automatically enrolls respondent inactive, a draconian measure, which would make resistance impossible for most attorneys who would mount an appellate challenge. Section 6007 thus deters challenges to the State Bar, accelerating its bureaucratic ossification. State Bar establishment doctrine justifies the provision both by the public's right to protection and the respondent’s to speedy resolution, but a Fine case timeline shows the alleged judicial incidents began in 1999, and the Bar brought charges in February 2006. The public has an interest in preventing practice by psychopaths, but if Fine were an attorney bereft of scruples, he has practiced while harboring this deficit some 9 years after the event, and Judge Honn’s opinion does not disclose how long the Bar has imposed investigatory annoyances on Fine. How much would it matter for public protection if Fine were allowed to practice until his appeal is resolved? The expediency the State Bar Court rules promote provides little added public protection, while undermining salutary appellate strategies.

A fact little appreciated because of that court’s draconian powers, the State Bar Court is not a real court of law. The State Bar Court's jurisdiction derives entirely from the Supreme Court, the State Bar being both a semi-private corporation and an administrative arm of the Supreme Court, a compound status whose incoherence we ignore, as we ignore exceptions to Supreme Court jurisdiction for some lesser disciplinary penalties. The convoluted characterizations of the State Bar’s court’s legal status show that the Bar assumes powers constitutionally uncontemplated, as in In re Rose (2000) 22 Cal.4th 430, which relates to another bad trade-off in State Bar procedure, a subject of Richard Fine's current writ petition to the California Supreme Court, Richard Isaac Fine v. State Bar, Case No. S161247 (http://tinyurl.com/2xcgl4) The case added yet another epicycle to truncate respondents’ right to invoke a real court's jurisdiction, critical because permitting attack from outside the ingrown, collusive State Bar system. In re Rose unfortunately holds that when an attorney petitions the Supreme Court for review of a final decision, the court need not hear oral argument or provide a written opinion. The Supreme Court concluded anomalously it exercised final jurisdiction over all acts of disbarment yet denied that final judgments were subject to the conditions and protections the California Constitution afforded causes in constitutional courts. The court's arguments are so contrived that were they raised by a petitioner before that court, petitioner would risk sanction. The Supreme Court maintained:

Nothing in the debates regarding the written-decision requirement in article VI, section 2, of the Constitution of 1879 suggests that the term "cause" was intended to extend to attorney admission and disciplinary proceedings. [Citation.] The generally understood legal meaning of that term also supports the conclusion that such matters are not causes. The word "cause" is a synonym for “‘a proceeding in court, a suit, or action.' "[Citations.]

A petition for review of a State Bar Court recommendation regarding admission or discipline does not fall within any of these definitions. Like the proceeding in the State Bar Court, it is sui generis—the procedures governing ordinary civil and criminal proceedings do not necessarily apply. [Citations.] (In re Rose, supra, 22 Cal.4th at pp. 452-453.)

Absence of evidence that the Legislature included Bar proceedings is not evidence of the absence of its intent. Since Legislature showed its intent precisely, by using the term “cause,” its legal meaning is wholly dispositive. Even if the State Bar proceeding itself is not a "proceeding in court," the law requires that the Supreme Court’s disbarment procedure is such a proceeding.

As Justice Kennard stated in dissent:

The majority's decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution's guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings. (In re Rose, supra, 22 Cal.4th at p. 461 [dissent, Kennard, J.].)

The State Bar Court was not a usurper but passive recipient from its Supreme Court benefactor. Superficially, practical necessity—the growing weight of attorney numbers—compelled bureaucratization. Justice Kennard's excellent dissent in this revealing case refutes the rationalization by counter-example: the Supreme Court could have divided the cases within the Court of Appeal. Of the Supreme Court's motives for deviating from legislative intent, I speculate, and In re Rose attests to the burden of attorney discipline:

By 1990, before we adopted a policy of discretionary review pursuant to rule 954, we were issuing more than 40 opinions annually in State Bar disciplinary proceedings, and the number was increasing. (In re Rose, supra, 22 Cal.4th at p. 457.)

The Supreme Court doesn't like State Bar cases, as is apprehended from its growing annoyance, before it gave up in the Lipson line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar (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 (1987) 43 Cal.3d 962, 968.). Nobody enjoys dealing with State Bar counsel, arrogant and incompetent, their work product unintelligible. Rational beings, Supreme Court justices prefer to place disciplinary cases in an isolation container, somehow to find a way to ensure due process yet avoid, as in Rose, signing tendentious opinions.

Rose's gravamen is not identical to Fine's; it serves to indicate why, in the course of the law’s development, Fine arrived at the present procedural posture. The governing procedural law was not always as today, and Fine v. State Bar independently pinpoints the inconsistency between judicial procedures and legislative intent. The issue Fine v. State Bar brings to the Supreme Court via petition for writ of mandate is: must the Supreme Court provide a written order after denying an interlocutory petition for review? Rose does not foreclose Fine's issue, because Fine contends statutory law expressly requires written orders following summary denial of a petition for review, a requirement the law does not expressly apply to disbarment, distinguishing Rose’s unfortunate holding. The statute governing these interlocutory summary denials states:

In any case in which a petition to review or to reverse or modify is filed by either party within the time allowed therefor, the Supreme Court shall make such order as it may deem proper in the circumstances. Nothing in this subdivision abrogates the Supreme Court's authority, on its own motion, to review de novo the decision or order of the State Bar Court. (Bus. & Prof. Code, section 6084, subd. (a).)

The dispositive issue of statutory construction concerns the scope of the permissive term "may”: must the court issue some order? Is the Legislature saying that the Supreme Court must issue any order only if it deems orders proper or that it must issue some order, selecting the one it deems proper? The rule’s language supports Fine’s construal, under the canon against surplusage, the rule of statutory construction that requires giving effect to every part of the statute. In the second quoted sentence above, the statute reiterates it does not abrogate the Supreme Court's universal authority to review any time on its own motion. A permissive rule as to orders, already in place, is surplusage in Business and Professions code section 6084.

Rose also contains implications for how to contest the State Bar in the real courts, in the comments of Justice Brown, separately dissenting:

Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. … (In re Rose, supra, 22 Cal.4th at pp. 466-467 [dissent, Brown, J.].)

Justice Brown states with judicial precision that a respondent's prospects for obtaining actual review depend on neither where the issues actually fall relative to rule 954’s ambit nor how the Supreme Court arbitrarily characterizes them. Respondents must frame the issues so they clearly fall within the rule and must state their case so clearly that a busy and avoidant court grasps the issues and ratifies the arguments.

In combination, written clarity, relevance, and concision are uncommon among trial attorneys, whose expertise is oral and who instinctively seek completeness and correctness. Put it out there, encompassing every bit of evidence, every significant logical connection, and a properly functioning court will absorb it. In truth, language must be crafted to persuade, undaunting in mass, ultra-clear in exposition.

The Supreme Court should grant Fine's mandamus petition and allow Fine to state his arguments, orally as well as in writing.

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Because of its length, I will count this installment as two. Next installment due in one week.

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.

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