kanBARoo Court. 44th Installment. Richard I. Fine Revisited and the State Bar's Usurpation of the Contempt Power

Richard I. Fine, fighting on several fronts, continues to resist State Bar oppression. Fine recently presented oral argument before the State Bar Court Review Department, submitted disqualification motions against judges involved in his disbarment, and filed a civil rights suit in federal court for declaratory and injunctive relief. In the federal action, Fine seeks to have Business and Professions Code section 6007, subdivision (c)(4), declared unconstitutional. Fine contends this provision violates due-process notice requirements by allowing the State Bar Court to enroll Members involuntarily inactive, as corollary to a disbarment recommendation, without holding a special hearing evaluating the factors subdivision (c)(2) requires. Fine also challenges the "moral turpitude statute," Business and Professions Code section 6006, as unconstitutionally overbroad.

The Metropolitan News-Enterprise (June 25, 2008) covered Fine's oral argument. The reported remarks show both the Office of the Chief Trial Counsel's abysmal legal backwardness and the State Bar Court's unconstitutional over-reaching. The State Bar's counsel maintained that the Fine case did not pose First Amendment issues, because the case concerns acts done, not utterances stated. The comment of Review Judge Judith Epstein proves the wrongheadedness of the OCTC's perspective. Judge Epstein saw Fine's judicial communication of allegedly known falsehoods as the gravamen of the State Bar's charges. The relevant distinction drawn by Epstein has nothing to do with that between speech and action, as Bar counsel conceives, but whether the constitution protects the given speech.

Bar Trial Counsel also stated that the problem is that Fine sees no wrong in his actions, and, if allowed to practice law, he would repeat them. Even if sound, this argument fails to embrace the State Bar's ameliorative theory of discipline, as trial counsel does not consider the likelihood that imposing lesser discipline would change Fine's attitudes. (See Maltaman v. State Bar (1987) 43 Cal.3d 924, 958 ["Because petitioner has no prior record of discipline, we have no evidence that a sanction short of disbarment is inadequate to deter future misconduct and protect the public."].) Exposing the State Bar's self-serving disregard of the prospects for "reforming" respondent Fine is not to admit that Fine's attitudes need reform. The State Bar's grandiose belief in its own capacity to determine independently whether Fine performed his lawyerly duty of candor to the court does need reform. Fine reports that findings of contempt in two courts were invalidated. The State Bar didn't predicate its charges on contempt findings because judicial officers—unable to sustain contempt charges in courts of record —obtained a de facto contempt conviction by collaterally attacking Fine in the State Bar Court.

The argument that a guilt finding for contempt must undergird a constitutionally proper penalty for violating a court order applies to Fine's situation, because the logic applies not only to violating court orders but also to breaching any rule or statute tested by constitutional-court contempt proceedings. The 41st Installment argued that interpreting Business and Professions Code section 6103 to allow State-Bar attorney discipline for violating a court order, absent contempt, was incompatible with California's public policy, which lets litigants challenge court orders by violating them. The inconsistency between public policy and State Bar practice deprives attorneys and indirectly their clients of the law's equal protection. Proving contempt by judicial fact finding—not necessarily involving a court order—implicates the same principle, since non-attorney parties, unequally, have the right to a contempt trial, with its higher standard of proof than a State Bar proceeding.

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.