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.

76th Installment. Give Philip E. Kay his day before an “honest-to-God judge”

7^th in Philip E. Kay series
Philip Kay resumed his accustomed role on the plaintiff's side by suing the California State Bar. State Bar respondents should seek new strategies because 1) strategies unanticipated by the state-bar establishment are more likely to prevail; and 2) the known options have a low probability of success. Kay's 92-page first-amended complaint contains a novel strategy for state-bar defense. (Case No. CFF-10-496869, Cal. Superior Court, San Francisco.)

Kay's clever idea asks the superior court to enjoin the State Bar from recommending his disbarment. A plaintiff can obtain injunctive relief or any equitable remedy only when remedies at law are inadequate, and Kay's suit will survive demurrer only if he shows the existing Supreme Court review process is sham. Kay's complaint—containing argument and numerous citations to case law and looking more like a brief—argues that allowing the State Bar to pass its recommendation to the Supreme Court will cost time and expense when Kay subsequently sues to vacate the judgment, irreparably harming Kay and his clients.

This is undoubtedly the weakest point of Kay's case. Kay sidesteps arguing that review by the Supreme Court is an infirm remedy at law by treating posttrial relief as remedy; but the alternative, arguing in superior court that review by the Supreme Court is not an adequate remedy at law, could seem worse. Any way Kay pleads the case, the likelihood of his prevailing in superior court is nonexistent; the likelihood of surviving demurrer, negligible. His object should be to bridge to the federal courts, and to satisfy federal jurisdiction, he must challenge the adequacy of the petition mechanism. To dispel the apparent absurdity of a contest of the petition's adequacy, Kay should emphasize that the Supreme Court rules on a petition for writ of review by exercising a separate plenary power over the State Bar, not in the Supreme Court's role as court of last appeal.

Justice Brown's In re Rose dissent summarizes the basic argument for the inadequacy of the petition for review:

As the court itself has acknowledged only recently, changes in our own rules made in the wake of legislative amendments to the administrative procedures governing bar discipline proceedings "relieve the court of the burden of intense scrutiny of all disciplinary recommendations." [Citation.]...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 (2000) 22 Cal. 4th 430, 466 [Dissenting opn. by Brown, J.].)

Disdaining the "advances" of the California Bar system, which congratulates itself for providing fake judges to oversee attorney discipline, Justice Brown continues:

The host of practitioners of this and that trade, licensed and regulated by government agencies, has access to administrative mandamus in discipline cases, where judges of article VI courts review questions of law de novo and questions of fact under the substantial evidence standard. They get both a full plate of administrative due process and real judicial review. Before honest-to-God judges. [Citation.] (In re Rose, supra, 22 Cal. 4th at p. 469. [Brown, J.].)

Justice Brown stopped short of concluding the review procedure fell below minimum U.S. Constitutional standards for due process and equal protection: her dire prognosis proved over-optimistic. In re Rose was the Supreme Court's first and last State Bar case after the Legislature downgraded attorneys' entitlement to judicial review. The Supreme Court's blindness when denying review also proves its remedial inadequacy, as in my case, where the Supreme Court ignored the State Bar's fraud, publicly documented in my petition for writ of review; the identified perpetrator Melanie J. Lawrence remains on the State Bar's payroll.

State Bar rules lock respondents into their positions. Respondents must assess the risks of waiver even more carefully than in superior court. Kay may find it hard to rebut allegations that his filing a petition for writ of review, recently denied by the California Supreme Court, waived contest of the review mechanism.

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Corrections (March 21, 2010):

In my rush to publish, two errors crept into my account:

First the good news. Philip Kay's petition for writ of review remains unfiled, changing my commentary's nature from expression of regret to suggestion. This is good because suggestion is better than regret.

The bad news is that the Supreme Court considered In re Silverton, another State Bar matter, following In re Rose. (See In re Silverton (2005) 36 Cal.4th 81.) I should have written "In re Rose was the last petition for writ of review the Supreme Court granted." In re Silverton is the exception that proves the rule that the Supreme Court has abandoned the practice of reviewing State Bar cases. The Supreme Court first denied Silverton's petition and reviewed the case on its own motion, disbarring Silverton despite the State Bar Court's recommended suspension.

In re Silverton told State Bar respondents that only ill could come from filing petitions for writ of review: petition denied but attention granted. The Supreme Court's punitiveness in Silverton shows a Supreme Court as malicious as the State Bar, but I'm afraid the case weakens the argument that the Supreme Court provides no review.

kanBARoo Court. 48B Installment. The Mechanism of Review

The State Bar Court is not a court, since institutions function judicially only when subject to review. The formal review procedure falls short of actual judicial supervision, as the results show. Since the In re Rose (2000) 22 Cal.4th 430 opinionless-decision case, the Supreme Court has granted only a single petition of review (see In re Silverton (2005) 36 Cal.4th 81) and has reversed no State Bar recommendations, even partially. Absence of written opinions would ordinarily determine that the State Bar Court is subject to no supervision by an Article VI court. But the State Bar has a special relationship to the Supreme Court, its assigned supervisory role over the State Bar Court—not its general judicial supremacy in California—authorizing its review. To exercise its supervisory function the court would be compelled to grant petitions for review — or so I thought — when the State Bar's practices were potentially embarrassing or spiraling out of control. While the law provides for no method of supervision at the case level besides review, the review process's rubber-stamp character means the Supreme Court must have other supervisory channels, other means of expressing displeasure with the State Bar, even when the petition's denial is the court's only public act.

The other major factor that causes a practical absence of granted petitions is the unreasonably high standard for reversing the State Bar Court. Often, to reverse the State Bar Court — where the clear-and-convincing-evidence standard had favored respondent — requires that the State Bar respondent prove the State Bar Court's decision was wrong by clear-and-convincing evidence. In the usual case it is under the clear-and-convincing-evidence standard that the Supreme Court must determine the State Bar respondent is more likely than not to prevail for the Supreme Court to grant a full review. The clear-and-convincing-evidence standard for prevailing raises the bar on preliminary review so inordinately as to extinguish the review process.

Combining the clear-and-convincing-evidence standard with opinionless reviews means that the State Bar respondent must not only meet this extraordinary standard of disproof but also receive no information on the petition's insufficiencies relative to this least intuitive of standards. Petitions for rehearing become almost impossible to write.