102nd Installment. The prosecutor/debt-collector complex

Installment 100, on California State Bar collusion with debt-collection thugs, concluded with this comment about its debt collector, Wakefield Associates:

Some other corrupt judicial organs must use Wakefield Associates’ services, and they succeed in deceiving the legally naïve into fearing that criminal justice is their pursuer. The business model of these gray-market criminals is otherwise inexplicable.

What an understatement! As I only recently discovered, the New York Times broke the scandal last January (reported online by Westword, “In 2013, debt collection is big business—really big,” by Denise Grollmus): district attorneys in more than 300 jurisdictions, including Los Angeles and New York, have privatized debt-collection prosecutions by farming out their power to punish writing bad checks.

Under contract with the district attorneys, illegal collection syndicates threaten citizens who’ve written a bad check—usually caused by ordinary carelessness and thus subject to only small civil penalties—with criminal prosecution if they don't pay to attend special financial-management classes run by the collector, who profits handsomely. The threats of prosecution are almost always empty, pure harassment, as the proportion of uncooperative threat recipients actually prosecuted by the DA is minuscule.

DAs contracting with these collection thugs commit disciplinable ethics' infractions that the state bars refuse to discipline: aiding and abetting the practice of law by nonlawyers and harassment. The DAs aid and abet illegal law practice because they even allow the collectors to use the official letterhead of the DAs' offices to issue their threats, and in practice, they even allow the collector to determine probable cause. (Credit to Ethics Alarms, “Prosecutor prosecute thyself,” on the illegal practice of law.) The DAs knowingly contract for the thugs to harass citizens. In California, Los Angeles and Riverside DAs employ Corrective Solutions, whose CEO, Mike Wilhelms, has made himself judgment proof by repeatedly declaring  bankruptcy and starting another collection racquet after losing lawsuits for harassment and unfair business practices under the Fair Debt Collection Act. (What irony!)  Most ethics codes proscribe harassment; in California, it falls under moral turpitude.

In Installment 85, I concluded that the California State Bar refrains from prosecuting prosecutorial misconduct because state-bar prosecutors themselves engage in rampant misconduct. There are additional  motives; for example, trial counsels' ambitions to graduate to become real prosecutors. State-bar prosecutors often aspire to be real prosecutors, and what chance would they have after prosecuting them? I discovered from the pattern of views on this blog that Melanie J. Lawrence is applying for a job with the DA's office in Brooklyn, New York, where she is licensed to practice. No doubt she scored points by denying the existence of prosecutorial misconduct, at conferences. But the big reason the California State Bar won't interfere with the with district attorneys’ outrageously illegal privatization of enforcement is that the California State Bar is up to its neck in gray-market crime with the collection thugs at Wakefield Associates.

Interlude 26. At ABA Conference, California State Bar prosecutor Melanie J. Lawrence—notorious felon—denies the existence of prosecutorial misconduct

Prosecutorial misconduct has become so rampant in the U.S. that official ethicists recognize a problem of state-bar failure to prosecute prosecutors. kanBARoo court 85th Installment, California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence, concluded that state bars fail to prosecute prosecutors because state-bar prosecutors themselves commit rampant misconduct. A conclave of official ethicists and state-bar enforcers in Chicago last August illuminated the problem, first through the insights of academician Ellen Yaroshefsky of Cardozo Law and functionary Maureen E. Mulvenna of the Illinois state-bar establishment; second, from the example in their midst, Melanie J. Lawrence, representing the California State Bar. (Hat Tip: Helen W. Gunnarsson.)

Yaroshefsky explained research findings: winning outweighs legality when moralism convulses prosecutors once they convince themselves of the defendant's guilt.

Mulvenna described a case, In re Howes (D.C. 2012) 39 A.3d 1, which exposes the depth of state-bar complicity in prosecutorial misconduct. Prosecutor Howes bribed inmate witnesses to appear, by illegally dispersing witness-voucher funds. Howes then lied to the court to conceal the influence and embezzlement. Shockingly, half of the hearing panel favored a mere suspension, some members recommending duration as short as one year, on the ground that the prosecutor acted for meritorious reasons: convicting a guilty defendant.

One dissenter denied the problem: Lawrence—a functional illiterate in the law—with emblematic California State Bar unearned arrogance and condescension, lectured the academicians to “go and read the reports for yourself.” Lawrence’s denial is not the result of naivete. Lawrence knows the California State Bar ignores prosecutorial misconduct, because she perpetrated proven misconduct in full view of the State Bar and not only got away with it but was twice promoted. (See also: 14th Installment, Turning Point, including Comments;15th Installment, PREDICT the Court's Ruling; and 22nd Installment, Can you tell victory from defeat?) Delegating Lawrence to opine on prosecutorial misconduct further ratifies hers and proves the problem the California State Bar dispatched Lawrence to Chicago to deny. 

89A Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 2. Homophobia

Any one of several initially plausible theories, ranging from the state-bar's incompetence to its viciousness, might explain the severity it inflicted on Dahlin.

The first theory, suggested by scattered state-bar commentary, is that Dahlin, in reality, was disbarred for associated conduct rather than, as ostensible, the commingling of funds. The bar court wrote vaguely of the general aroma of dishonesty surrounding the "misappropriation," and though only sporadically, it alleged certain specifics, most significantly accusing Dahlin of prematurely representing to a superior-court judge that he had distributed all trust funds. Now, if this allegation were true, the offense would be very serious misconduct, certainly involving moral turpitude. Dahlin not only would have lied to the court but, committing the perfidy of disloyal dishonesty, lied to thwart the court's efforts to protect his clients' rights.

This theory implicates the state-bar's incompetence because if what's alleged were true, the bar—basing its case on the wrong infraction and, consequently, driven to exaggeration to justify disbarment—would have demonstrated by practically ignoring the truly disbarrable acts of dishonesty and disloyalty that it fails to grasp even the concept of moral turpitude. In some ways, this rings true. To the state bar, the worst misconduct involves money—regardless of how slight the attorney's fault—simply because the state bar is the payer of last resort when client funds are misappropriated.

But the theory caricatures the incompetence of the state bar, which disbarred Richard Fine for a single alleged misrepresentation to a judge. Extreme caution in accepting the allegations that this theory relies on is warranted, due to the state bar's lack of credibility. Its allegations of misrepresentation should not be granted automatic credence, particularly when the findings omit Dahlin's counter-contentions. More likely, the bar court, which didn't quote Dahlin's language or the superior court's, lacked a case against Dahlin for dishonesty or disloyalty.

The second competing theory has Dahlin disbarred for challenging the state bar's authority. Dahlin thinks his insistence on redacting confidential information incurred the state bar's enmity, but redaction doesn't affront the prosecutor. To the contrary, the more onerously state-bar prosecutors can burden a respondent, the happier they are; this explains the absence of a page limit on pleadings and petitions. The state bar is delighted when the respondent insists on laboring harder, as it furthers the bar's war of attrition and realizes the bar's hope of exhausting respondent or his resources.

The last possibility is that the state bar's animus was personal: the prosecutors and judges disliked the man. Personal prejudices shape an unaccountable police agency free to implement them, but which of Dahlin's traits could make the entire bar apparatus hate him? To answer the question, you must know more about Dahlin, something easy enough to discover: Dahlin is gay and demonstratively so; colloquially, he's a flaming homosexual, and to prove it, he made a gay movie.

State-bar homophobia is ironic in that Lesbians predominate among its deputy trial counsel. (Our Prosecutrix, Melanie J. Lawrence, swaggered into the courtroom looking like a boy.) Ironic but not contradictory, as Lesbians, who reject men, tend to be most offended by those returning the favor.

Public knowledge of Dahlin's sexual deviance helps discern the source of the state-bar's animus, but how many respondents whose offensive traits aren't so public receive the spite of the unaccountable state bar, effecting all the prejudices inherent in a mentally aberrant clique?

85th Installment. California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence

kanBARoo court differs from most other judicial-system criticisms in declining to demand more prosecutions. Often critics respond to inequities in justice's administration by demanding prosecutions of the truly guilty, not just relief for the unjustly prosecuted. No doubt, one might derive satisfaction from reporting judges or gloating over their comeuppance, but this satisfaction comes at the expense of consistency and principle: advocacy of prosecution by a corrupt, oppressive, or incompetent agency contradicts the intended defense of due process. Only perpetration of crimes so great they overshadow the State Bar's defects—John Yoo is the only example that comes to mind—justifies supporting (never advocating!) state-bar prosecutions. kanBARoo court doesn't advocate prosecution even in the extreme case of Ronald N. Gottschalk or Melanie J. Lawrence. Nor did I report Lawrence's criminal misconduct to the State Bar as some advised; I refused even to report Kim and company to the police, as the state's prosecutorial authority differs from that of the state bar in its greater competence, not greater inclination to justice. Principled opponents of authoritarian oppression don't beseech the oppressive authorities!

Therefore, readers shouldn't interpret the following critique of failure to prosecute prosecutors as a demand for their prosecution. To avoid the misunderstanding of an important principle, I emphasize this caveat, even at the expense of the main message; but principles don't preclude publicizing and analyzing failures to prosecute, omissions laying bare the state-bars' mainsprings. With that caveat, I proceed with clear conscience to describe the California State Bar's astounding failure to prosecute prosecutors

Recently, the Northern California Innocence Project released a study of prosecutor misconduct staggering in demonstrating prosecutory bias. One fact stands out in this report: over the past decade, the State Bar has disciplined only six prosecutors for misconduct in prosecution. (Hat Tip to The Crime Report.) Business & Professions Code sections 6086.7 and 6086.8, subdivision (a), require judges to report misconduct that affects trial outcome, and mandatory "reported events" by judges produced approximately one thousand reports over the period studied, but of these, only six led to state-bar sanctions of prosecutors in criminal cases. For most practical purposes, we can justly say the California State Bar refuses to prosecute any prosecutor. (The only exception is the recent prosecution of four prosecutors, comprising the bulk of the six. This prosecution resulted from a power-struggle within the state bar that led to Chief Trial Counsel Scott Drexel's ouster and represented a crude attempt to appease the discontented state-bar defense establishment.)

The Mark Sodersten case shows how this refusal plays out, how the free pass given prosecutors is intentional rather than (somehow) merely negligent. Sodersten is one of the great success stories of the Northern California Innocence Project, which seeks exoneration for victims of the criminal-justice system who didn't commit the crimes charged. The California Court of Appeal freed Sodersten based on evidence the Innocence Project discovered proving he was the victim of withholding evidence by the prosecutor, who himself had interviewed the potentially exonerating witness, so there was no legitimate question about the concealment's willfulness. This prosecutor was a real fiend; can you imagine asking for the death penalty for a defendant who you know was convicted on falsified evidence? Since the evidence was exonerating, one can go so far as to say this prosecutor demanded the death penalty for someone he knew was innocent.

 
The California State Bar couldn't avoid opening an investigation of Philip Cline, then a Tulare County assistant district attorney, but it refused to find culpability, claiming insufficiency of evidence, a deficiency deterring the State Bar in no other prosecution. The free pass allowed this prosecutor to flourish: this attempted murderer is now district attorney for Tulare County.

Sodersten shows the California State Bar isn't merely lax about prosecuting prosecutors but actively resists finding prosecutors guilty. Opponents of the State Bar establishment have an interest in knowing why. One theory, advanced by the loyal opposition of the California State Bar establishment, the Association of Discipline Defense Counsel and its leader, David Cameron Carr. Carr, claims that the state bar is really a consumer-protection agency rather than an enforcer of ethical principles, implying that the disciplinary mechanism within government agencies adequately protects the public. The theory can't explain the intensity of resistance to prosecuting prosecutors; it explains at most a lack of emphasis on such prosecutions. Carr would have it that the State Bar doesn't consider prosecutorial misconduct important enough to prosecute, a premise that doesn't explain outright refusal to prosecute. The data also refute a theory I proposed, that the State Bar is unconcerned with prosecuting "government attorneys" because there's no money in it, the State Bar having an interest in the trust accounts of civil attorneys, as it retains the interest on these accounts. This too explains only lack of concern, not determined avoidance.

"Government lawyers" is a misleading abstraction. I haven't seen figures on prosecutions of other "government attorneys;" the record concerning public defenders would be particularly interesting. But even if the prosecution rates are low across the board for lawyers working for government, this 1) still doesn't explain active resistance to prosecution of prosecutors; and 2) doesn't explain why common sense and the obvious need for discipline for misconduct of the sort Philip Cline perpetrated doesn't compel making an exception to any rule exempting "government lawyers," since the imperatives that apply to prosecutors don't apply to other classes of "government lawyers." An unethical monster like Philip Cline is a moral threat whether or not he leaves government service. No client should trust such a creature; none should have to risk association with him.

Prosecutorial solidarity is the only tenable explanation I find for the State Bar's avid refusal to prosecute prosecutors. The State Bar, after all, effectively is composed of prosecutors, and the boundary between prosecutors in general criminal practice and State Bar "trial counsel" is porous, the State Bar the refuge of the most incompetent of the lot, not necessarily the most vile. The prosecutors in the State Bar have a stake in not seeing other prosecutors prosecuted because, in general, prosecutors often engage in misconduct, particularly State Bar prosecutors. While the State Bar has no shortage of hypocrisy, it knows its self-interest. Once prosecution of prosecutors becomes common, why wouldn't a public outcry demand prosecution of "trial counsel"? By all indications, serious misconduct by these bar prosecutors is a common occurrence, even the norm. Every prosecutor has an interest in such misconduct getting a free pass.

The evidence of State Bar misconduct is rife throughout its cases, but the most rigorously proven instance happens to have occurred in my State Bar case, where "deputy trial counsel" Melanie J. Lawrence actually destroyed documents to obtain dismissal of my petition for review. Precisely because the evidence is circumstantial, hence not dependent on testimony, the proof of her misconduct is airtight. Readers can verify this tolerance for misconduct by bar counsel all the way from the nefarious Judge Honn to an indifferent California Supreme Court. Lawrence and the attorneys representing the state bar consistently refused to address the charges of misconduct; with proof so clear, they determined to stonewall. While my briefs pounded away on the subject, the State Bar's briefs ignored my allegations. They needed to craft no arguments; they simply pretended my claims were absent. Subsequently, no investigation was opened, despite the proof I briefed.

While Philip Cline is district attorney of Tulare County, Melanie J. Lawrence continues in employment by the State Bar. The State Bar doesn't prosecute prosecutors for misconduct because, out of self-interest and empathy, it favors such misconduct.

Interlude 18. Judicial Narcissism versus Justice: the Melvin H. Hoffman Matter

During a phone conference, family-law litigator Melvin Hoffman called a judge a "narcissistic, maniacal, mental case." The judge reported Hoffman to the Illinois state bar, resulting in a six-month suspension, and the judge drew ridicule, even from within the state-bar establishment (see Monroe Freedman's comment). The Illinois state bar's conduct is unsavory, not only because of the infraction's pettiness but also because of prosecution in bad faith, reviving long-abandoned charges, one a decade old. From review of the ABA discussion board, one conclusion is certain: lawyers and the public—following numerous exposures—will no longer presume they should respect undeserving judges; but the legal and ethical underpinning of a critical attitude toward judges lags.

Many commenters (e.g., Comments #39 and #81) applauded Hoffman's ethics, but state-bar ideology isn't quite dead. One commenter (#10) came close to admitting that irrational, automatic public respect for courts is what's at stake, but the most repugnant argument for mandatory respect was the hypocritical claim that Hoffman's conduct was prejudicial to his client. These critics' (#33, #21, #58, and #92) readiness to second-guess Hoffman shows this is not good-faith criticism. Even the most sophisticated of these comments (#38), which pointed out that confronting a narcissist with his diagnosis predictably causes an outburst of narcissistic rage, refused to acknowledge that the injustice might have gone far enough that the incident's publicity was the only remedy or that elicitation of the judge's expected narcissistic rage was the only tactic exposing the judge as a megalomanic narcissist. (See "Installment 22: Can you tell victory from defeat?") To demand Hoffman explain his tactical reasoning ignores his work-product privilege. This was no episode of "snapping," Hoffman having written the judge to reiterate and elaborate his insights.

The lack of legal sophistication in the comments shouldn't surprise given the low level of legal coherence cultivated by a nationwide state-bar establishment that has eliminated real legal contention in ethics. The legal and ethical naivete underscores the importance of looking to other state-bar cases to build a cumulative case against the state-bar courts, and this means looking across jurisdictional lines, since the state-bar courts are similar across the land. Confusion dominated the discussion of courtroom free-speech rights. Hoffman's critics relied on the half-truth that attorneys in court lack free-speech rights, but Hoffman's supporters also erred, if in a less pernicious fashion, by simplistically affirming that ordinary free speech rules favoring the speaker applied. When an attorney represents a party, restrictions on the attorney's speech aren't measured by the attorney's free speech rights but by his client's equally exacting first-amendment right to petition. While the Hoffman supporters were formally wrong in claiming Hoffman's free-speech rights (#21), they recognized a first-amendment issue. Any restriction on an attorney's right to speak relevant truth defeats his client's right to petition. The burden of proving falsity falls on the judge or bar prosecutor, whereas the Illinois bar court assumed Hoffman culpable unless he proved his accusation.

The conspicuous weakness in Hoffman's supporters was their general failure to distinguish this act of state-bar oppression from ordinary court-imposed sanctions or contempt findings. Hoffman's critics understood a distinction in the opposite sense that duty requires attorneys to demonstrate compliance with higher standards than laymen, but that's a miserable debater's point: "respect for the court," while theoretically a higher standard, is vaguer, hence harder to prove, than the standards for contempt or other sanctions. For a judge to report a lawyer to the bar courts without citing him for contempt or issuing any sanction is so craven it immediately inculpates the judge in some foul play. The judge bypassed the rigorous criteria for contempt and monetary sanctions in the courts of record by avoiding those courts and forum shopping a softer adjudicator.

Any state-bar discipline for courtroom behavior imposes a penalty far more onerous than the courts, as even a public reprimand often ends an attorney's career. The difference in punishment between lawyer and nonlawyer for courtroom behavior is so wide, it affronts the lawyer's and his client's equal protection of the law.

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.

_______________________

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.

67th Installment. Tactical Lessons of the Philip E. Kay Case

The Hearing Department entered Philip E. Kay's default when Kay refused to retake the stand after the Hearing Department judge not only denied objections on matters of privilege — such as the terms of his fee agreement with his former client Weeks — but also began entering his refusals to answer as affirmative inculpating responses. Kay filed a comprehensive petition for interlocutory review to oppose the California State Bar Court Hearing Department's entry of default. Kay's papers in opposition included his promise to resume testifying if the court set the default aside. Without explanation, the Review Department of the State Bar Court recently denied the petition.

Assessing tactics is part of educating respondents in how to fight the State Bar, since lawyers don't usually understand the different tactical terrain in State Bar Court, which, instead of treating them legally, treats all its cases with political animus. Respondents can achieve their legal goals, if at all, only by setting forth the starkest facts and crispest arguments on appeal. Often, a respondent may only hope to make the clearest demonstration of judicial error for the public's edification. In my case, I think that the trial court stood in a weaker position due to its failure to protect the most basic due-process rights than due to its proceeding on a statutorily defective Notice of Disciplinary Charges. Since the adequacy of the NDC is arguable and Melanie J. Lawrence's malfeasance isn't, I opted to rest my case on the malfeasance, despite the cost of default.

I apply the same criterion of outcome clarity to Kay's tactical choices to reach a different conclusion about his default; but note, Kay's tactics should be considered, as the economists say, ex ante: from the perspective of knowledge then available. While we know Kay's default was entered, we don't know that Kay could have known the same or, more importantly, that any attorney any time would suffer the same injustice. We don't know that Kay's attempt to come before an Article 6 court was doomed from the start mainly because we don't know all the political influences at play. Kay's mistake wasn't failing to anticipate entry of default; if an Article 6 court was a probable source of relief, Kay's attempt to reach one wasn't irrational, since success wasn't foreclosed.

Kay's mistake, in my view, was his confidence in the Article 6 courts. The Richard I. Fine case, my case — even the inception of Kay's case — show that the courts of record will not refuse the State Bar. Superior court judges initiated the Fine and Kay cases. In Fine's, Superior Court Judge Yaffe took off from where the State Bar left the matter, and Fine remains in jail, there for more than a half year. In my case, the Supreme Court silently refused to address proof that the Office of the Chief Trial Counsel and a Review Department clerk tampered with the record to cause entry of default.

After putting aside reliance on the Article 6 courts, we still haven't completely answered the tactical question. We have to consider whether Kay leaves a better record by suffering the unlawful entry of default or suffering a finding of culpability unsupported by the evidence. Kay's statute-of-limitations argument based on the Konig documents is highly persuasive; the argument based on the unlawful default is hard for many to understand: the absurdity of the Bar Court's self-proclaimed inherent powers is hidden by the California Supreme Court's vague language from the days when it still pretended to perform its State Bar supervisory duties. (See, for example, Jones v. State Bar (1989) 49 Cal.3d 273, 287 [discretion of hearing referee to exercise "reasonable control over the proceedings ..."].) For impact, Kay should prefer a finding of culpability unsupported by the evidence to an unlawful entry of default.

Interlude 11: Drexel and the DAs

Chief Trial Counsel Scott J. Drexel's removal has so demoralized the California State Bar bureaucracy that its trial counsel have succumbed to temptation to do the unthinkable: debate a former respondent. The discussion was at Crime and Federalism, a proprosecutorial blog, which bemoaned Drexel's firing. To start toward the end with comments by a current state-bar respondent, an elderly and disabled attorney, who describes his ordeal before the State Bar:

Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish. I know enough from experience the Drexel marching order is a "take no prisoners" operation that justifies its inquisition by parroting "We're protecting the public." Anybody critical of Scott Drexel must be opposed to protecting the public. Right? Drexel's M.O. has been to squander millions in building an empire devoted to destroying the sole practitioner, preferably elderly and disabled,while the big firm lawyers only find their licenses lifted due to federal court convictions. Do not believe the State Bar prosecution press releases as they are strictly public relation promotions like the above.

Attorney William Wells later added:

Further to the Scott Drexel playbook. During a continued trial I sufferred multiple fractures from a fall that required surgical repairs, hospitalization and bed confinement so I obtained a Declaration from a physician aware of these facts and filed it with a motion to continue in the routine manner in such events. Unknown to me, the Deputy trial counsel Erin M. Joyce secretly issued a subpoena for the personal appearance in court of my physcian over a two week span and caused a week of stalking, trespassing and harassment by a State Bar Investigator of my physcian at his home, office and hospital. Despite no personal service, Erin Joyce, trial counsel, caused to be prepared a false Declaration of personal service that only surfaced when a Motion to Quash was filed by my physcian and disclosed that the Declaration of Service was on its face totally illegal. The court agreed and granted the Motion to Quash but no sanctions or attorney fees and no redress by a tort action for abuse of process. If I need a Declaration from my physcian what would be your response? and his response? Who could blame him? This is an example of Nifong-Drexel protecting the public. [My emphasis, for legal significance.]

My only disagreement with poster William Wells is: "Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish." To the contrary, I think readers can appreciate the thuggish mentality of the State Bar simply by reading its contributions to the discussion. The State Bar communicates with telltale signature rhetoric, immediately conveying how it views its function.

The first commenter was a former State Bar prosecutor who recycles his public relations blurb for Drexel. His boilerplate included this observation: "Not one of the cases I brought to trial resulted in a finding of no culpability." This half-truth is the standard argument for Drexel's project of public posting from a case's inception, and I pointed out that the relevant statistic — even if you trust the Bar Court to provide the criterion — is the percentage of charges dismissed with prejudice, since public posting accuses the attorney of the full set of charges. The Bar Court dismisses the majority of charges!

Normally, the State Bar wouldn't compromise its arrogance or risk exposing its bad motives and poor competence by intervening in a public discussion. The State Bar is so unused to contention that it can't state a rational argument. Instead of dealing with my point about the dismissal with prejudice of most charges, never answered, the at-the-time-anonymous poster referred readers to my State Bar member record; nothing more except to put "position" when referring to "Mr. Diamond's position" in scare quotes.

Back to my quibble with William Wells concerning the need for first-hand experience to appreciate the State Bar's oppressiveness. From the ad hominem method of obfuscation alone, one could already surmise much. The signature use of scare quotes in place of arguments sufficed to categorize the poster as a bar prosecutor. When he replied to my response, which pointed out his refusal to identify himself while attacking me personally, he compromised and signed with his first name, "Patrick": my old friend Supervising Trial Counsel Patrick O'Brien. O'Brien was in charge of my case at the beginning. After he made some intemperate remarks, such as alerting me that he would report my refusal to comment orally as an admission, he transferred the case to our prosecutrix, Melanie J. Lawrence. Apparently the bar thought the case needed a "woman's" touch. [Scare-quote irony intended.]

Apart from these hints to William Wells and others on how to detect oppression at a glance, I want to deal with one other question the Crime & Federalism article raises concerning the Drexel removal: Drexel's prosecution of several San Diego deputy district attorneys. District attorneys usually avoid any bar investigation, but the reason isn't that the bar is reluctant to prosecute district attorneys. The judges, through California's Chief Justice of the Supreme Court, are the only sufficiently centralized authority capable of exerting major power over bar affairs, and district attorneys' withholding evidence doesn't please Chief Justice George. The reason that the State Bar emphasizes civil attorneys is financial. The State Bar zealously enforces attorney trust accounts because the State Bar is the their hidden beneficiary: it receives the interest on most accounts, and the State Bar's authority to disburse these funds augments its power; any trust account violation, any instance of commingling in regular accounts, takes money at the State Bar's disposal. While the client suffers delay following misappropriation, the State Bar is the loser. Misappropriation and comingling are the State Bar staples and the trust accounts the glaring conflict of interest, but, recently, court-order violations have been prominent. To understand the change, more important than the rise and fall of Chief Trial Counsel Drexel in the California bar is the rise of Chief Justice George in the California courts.

The problem with the district-attorney prosecutions isn't inherent wrongfulness. Despite the hypocrisy of the State Bar's prosecuting other prosecutors for withholding exculpatory evidence, district attorneys who withhold evidence and who violate court orders by lying deserve disbarment — harsher discipline than imposed. The problem is the tardiness of these prosecutions, taking place under the State Bar's unlimited statute of limitations for cases the Bar claims to initiate. The lateness shows the prosecutions were at the behest of judges who continued to be dissatisfied with these officers of the court after the ordinary statute of limitations expired. The state-bar-establishment's loyalist defense wing, not the DAs, made the effective response to the district-attorney prosecutions — confirmed by the direction of a phone call preceding the ouster: district attorney to influential bar-defense-counsel Margolis.

Installment 64B. State Bar tries to apply discovery procedure to trial testimony (Third in Philip E. Kay Series)

Count on the State Bar to do everything possible and some things impossible to take a default. In my case, Deputy Trial Counsel Melanie J. Lawrence failed twice before resorting to villainy, with help from both the Hearing and Review Departments, to get a terminating sanction. The Hearing Department defaulted Philip Kay when he refused to retake the stand after a week's misruling on his objections.

Kay argued that Rules of Procedure of the State Bar, rule 187, provided the State Bar's only remedy: referring the case to the superior court for contempt proceedings. The Bar Court held that it could use rule-186 procedures, which allow imposing terminating sanctions against discovery abuse. (See http://tinyurl.com/nax68j at p. 45, for both rules.) Rule 186 applies to discovery and allows application of the gamut of procedural sanctions, including termination. Rule 187 applies to "witnesses" and allows referral of nonappearing or uncooperative witnesses to superior court for contempt proceedings. Since rule 187 deals with witnesses, it covers both discovery and trial. If, as the Hearing Department contends, rule 186, despite saying otherwise, applies not only to discovery but also to trial, supporting that interpretation requires explaining why two separate rules exist to redress the same transgressions. On the Hearing Department's interpretation rule 186 and 187 collapse with the addition of contempt proceedings to the misnamed discovery sanctions in rule 186.

This uniquely broad concept of "discovery," that includes testimony at trial, is at odds with rule 186 itself. Rule 186, which authorizes using the Civil Discovery Act for discovery in Bar cases, incorporates the Civil Discovery Act into the Rules of Procedure of the State Bar, but rule 186 doesn't otherwise extend the Discovery Act's scope; the rule only limits its application in State Bar cases, prohibiting arrest and placing conditions on case dismissal. When the State Bar expands the scope of rule 186 to include trial, it goes beyond the underpinning Discovery Act. If section 186 applies to refusals to testify at trial, then the superior court using the Discovery Act, which rule 186 applies to Bar cases, could invoke the Act's sanction provisions to handle refusals to testify in a civil case. The State Bar argues respondent's refusal to testify justifies imposing discovery sanctions because the refusal thwarts the Bar's ability to prove its case in the same way as respondent's refusal to participate in discovery. The State Bar and the Bar Court should inquire why under the Rules of Civil Procedure the superior court couldn't invoke the Discovery Act to default a defendant who refuses to testify in a civil case.

Why then the policy distinction between refusal to testify at deposition and trial, only the first engaging the Discovery Act? During discovery either party's refusal to cooperate prevents the opposed party from building a case, but at trial the parties' positions are no longer analogous. If the plaintiff or petitioner takes the case to trial, that party presumably has sufficient evidence to prove the case. (See Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 714 [public policy disapproves of relieving plaintiff from meeting his burden of proof by defaulting defendant at trial].) The State Bar's need for Kay's extended trial testimony demonstrates the State Bar knowingly took the case against Kay to trial lacking the wherewithal to prove it.

kanBARoo Court. 43rd Installment. Petition for Writ of Review

[Filed July 25, 2008]

No. S164152

IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
STEPHEN R. DIAMOND,
Petitioner,
v.
STATE BAR,
Respondent.

PETITION FOR WRIT OF REVIEW

OF DECISION OF THE STATE BAR COURT

TABLE OF CONTENTS

Issues Presented to the Court..............................................1

Petition for Review...................................................................1

Overview.........................................................................................1
Detail................................................................................................2
Proof of Detail.................................................................................6

Basis for Supreme Court Jurisdiction..............................7

ARGUMENT.................................................................................8

1. The Office of the Chief Trial Counsel colluded
with a court clerk to deny petitioner a
fair hearingin the Hearing Department
and Review Department.......................................................8

A. Sabotaging petitioner’s submissions
to prevent filing denied petitioner a fair hearing...9

B. DTC Melanie J. Lawrence admitted she
could not produce a proof of service,
possession of which she would have lost
only through foulplay..........................................................9

2. The State Bar Court fosters
hypertechnicalism in its clerk’s office,
encouraging foul play,
while offending due process.............................................10

CONCLUSION..........................................................................11

TABLE OF AUTHORITIES

Cases

City Council v. McKinley (1978) 80 Cal.App.3d 204 ..............7
Estate of Neilson (1962) 57 Cal.2d 733, 746 ............................8
People v. Pearson (1952) 111 Cal.App.2d 9 .............................7
Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 .........................9

Statutes

Evid. Code, § 1221 .......................................................................8
Gov. Code, § 6200 .......................................................................7
Gov. Code, § 6203 .......................................................................9

Rules

Rules of Court, rule 9.16(a)(3) ..................................................6

ISSUES PRESENTED TO THE COURT

• Gov. Code, § 6200. The Office of the Chief Trial Counsel repeatedly colluded with a State Bar Court clerk to destroy documents this petitioner submitted for filing. Did this constructive denial of access to the court deprive petitioner of the right to a fair hearing?

• Hypertechnicalism. The State Bar Court clerk destroys motions and petitions whose filing it refuses, even when the deficiencies are correctable. Did this practice facilitate the misdeeds of the Office of the Chief Trial Counsel and directly deprive this petitioner of a fair hearing, when the clerk required an expensive resubmission?

PETITION FOR REVIEW

1. Stephen R. Diamond, respondent below, respectfully petitions for review following the decision of the State Bar Court, per Judge Honn, filed on April 10, 2008.

Overview

2. Petitioner contends he was denied a fair hearing, when the clerk’s office of the State Bar Court colluded with Deputy Trial Counsel Melanie J. Lawrence to deflect the filing of petitioner’s Petition for Interlocutory Review to the Review Department on November 27, 2007.

3. Petitioner contends that the administration of the State Bar Court fosters clerical hypertechnicalism, creating a climate where this abuse occurs.

4. Petitioner contends this abuse of the clerk’s office produced a complete denial of due process, because petitioner reasonably believed he could no longer rely on the clerk’s office, and declined to file subsequent papers after a second deflection occurred. Petitioner contends he rightfully expected the court to restrain the fraud that created the filing obstacles, since an uncompromised clerk’s office is part of the right to be heard.

5. Intermeddling with the petition for review denied due process not only by preventing a proper hearing before the Review Department but by causing the Hearing Department to deny petitioner’s motion for a stay, as the Petition for Review was the basis for staying the action below. The intermeddling precluded petitioner’s participation in the final status conference, where the court placed petitioner in default. It ultimately precluded a hearing on the merits. The intermeddling also precludes filing for review by the Review Department, a review that is of right.

6. Petitioner can prove the intermeddling involved with the Petition for Interlocutory Review. Petitioner has substantial reason to believe the clerk’s office or DTC Lawrence intermeddled with the subsequent document, Opposition to Motion for Entry of Default, as the Hearing Department did not receive this document, even though timely and carefully mailed.

Detail

7. The Office of the Chief Trial Counsel assigned Deputy Trial Counsel Melanie J. Lawrence to litigate petitioner’s case.

8. After the Hearing Department denied this petitioner’s motion to dismiss the NDC and motion to reconsider the order denying the motion to dismiss, petitioner tried to file a petition for interlocutory review with the Review Department and in a request for a stay based on the petition for review, in the Hearing Department.

9. Fearing the outcome on review or resenting the prospect of a stay, DTC Lawrence colluded with the court clerk to misrepresent that the submission was defective, falsely claiming a) the proof of service was not signed; and b) the submission included only four, as opposed to five, copies of the petition for review. The clerk noted these alleged defects in its letter to petitioner.

10. The Hearing Department denied petitioner’s request for stay. The clerk’s fraudulent rejection of the petition for review prevented petitioner from establishing that review was pending, the basis for the stay request.

11. DTC Lawrence moved for entry of default. Despite the regularity of mail delivery times, the court did not receive petitioner’s timely mailed opposition. Since Lawrence’s motion was unopposed, the court entered an order to show cause why it should not impose sanctions or enter default.

12. Petitioner reasonably inferred that DTC Lawrence probably intercepted petitioner’s opposition. She knew from her service copy that these papers exposed her malfeasance.

13. Petitioner filed a motion to reconsider the order to show cause concerning entering petitioner’s default. Petitioner sent the Hearing Department’s service letter under a cover letter informing Judge Honn of Lawrence’s malfeasance. The cover letter stated:

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

14. Petitioner ascertained Judge Honn’s receipt of petitioner’s motion to reconsider and the cover letter on Lawrence’s malfeasance by certified mail.

15. Despite the clerk’s office informing petitioner the clerk had rejected filing the petition for review, on December 28, 2007 the Review Department filed a summary denial of the petition for review. This was no satisfaction for petitioner’s concerns, because petitioner’s enforced ignorance of any ongoing review precluded any further participation. Petitioner would have amended his petition to include additional arguments. The misrepresentation about the state of the petition for review—the clerk said she had destroyed it—further impugns the probity of the clerk’s office.

16. The Hearing Department eventually denied petitioner’s motion to reconsider, on or about January 2, 2008, mentioning none of petitioner’s specific charges against DTC Lawrence.

17. The Hearing Department filed its Decision and Order of Involuntary Inactive Enrollment, following an April 10, 2008, hearing on the order to show cause on default and sanctions.

18. Petitioner did not appear at the hearing on the order to show cause. Petitioner contends he could not have a fair hearing after his constructive denial of access to the court through the clerk’s office. Petitioner also was denied the opportunity to bring motions to change the date or venue, changes he needed because of economic hardship. After the constructive denial of the use of the clerk’s office, through the Hearing Department’s failure to make any findings on petitioner’s allegations of malfeasance, petitioner stood on the complete breakdown of due process. Petitioner contends he was not required to risk waiver by further participation in proceedings that had become a sham.

Proof of Detail

19. Petitioner attached an unsigned proof of service to DTC Lawrence’s service copy of the petition for interlocutory review to the Review Department. All other copies were accompanied by a signed proof of service.

20. The document respondent sent Ms. Lawrence--hence, the one the clerk returned him-contained the date, handwritten in ink with no signature.

21. Since all the copies besides DTC Lawrence's were executed, it follows that the copy the clerk returned was actually Ms. Lawrence's copy.

22. The clerk’s office use of the counterfeit proof of service, only obtainable from DTC Lawrence, proves ex parte communication through the clerk's office and abuse of Lawrence's service copy to "prove" defect in the proofs of service.

23. If these accusations are false, Ms. Lawrence could have refuted them by producing her unsigned copy of the proof of service.

24. Petitioner repeatedly asserted in motion papers that DTC Lawrence committed this malfeasance and that she could not produce her service copy, as for example, in petitioner’s motion for reconsideration of the court’s order to show cause why sanctions should not be imposed.

25. DTC Lawrence repeatedly and vehemently denied malfeasance, but she never denied her inability to produce her service copy, and in motion papers, she admitted receiving an unsigned proof of service.

26. Petitioner contends that DTC Lawrence's failure to deny her inability to produce her service copy constitutes an admission and establishes her malfeasance in colluding with the clerk of court and the wrongfulness of the clerk’s rejection.

27. Petitioner has filed declarations by himself and his secretary attesting to including five copies in the packet. Since petitioner has refuted the alleged defect in proof of service, petitioner contends the bogus character of this other supposed defect is overwhelmingly probable.

BASIS FOR SUPREME COURT JURISDICTION

Petitioner petitions the Supreme Court for review under Rules of Court, rule 9.16(a)(3), based on denial of a fair hearing.

ARGUMENT

1. The Office of the Chief Trial Counsel colluded with a court clerk to deny petitioner a fair hearing in the Hearing Department and Review Department.

The clerk's office is a litigant's primary conduit to the court, and this holds true even more in the State Bar Court. DTC Melanie J. Lawrence colluded with an employee of the State Bar Court clerk's office to close this conduit, rendering futile this petitioner's attempts to litigate the State Bar's Notice of Disciplinary Charges. (Petition, ¶ 5 and ¶ 19 – ¶ 27.) Both DTC Lawrence and the clerk violated Government Code section 6200, which makes an officer's destruction of public records a felony. Answering any doubt that motion papers mailed for filing are public documents in the sense the law requires, public record is construed broadly to include documents whose preservation is expeditious. (See People v. Pearson (1952) 111 Cal.App.2d 9, 18.) The Government Code’s term “officer” applies, as a person charged with a necessary public function is an officer in the sense the statute requires. (See City Council v. McKinley (1978) 80 Cal.App.3d 204, 210.)

Petitioner finds no precedents from any jurisdiction speaking to the effect on due process of an orchestrated clerical breakdown. The issue does not come before the courts, as one cannot ordinarily prove or often even know that the clerk sabotaged the record. Here, intermeddling is provable because of an unusual circumstance: DTC Lawrence gave her service copy to the court clerk, who mailed petitioner that copy. (Petition, ¶ 19 – ¶ 23.) Despite the absence of relevant precedent, it is hard to conceive a more extreme denial of the right to be heard than closing the court’s clerical conduit.

A. Sabotaging petitioner’s submissions to prevent filing denied petitioner a fair hearing.

When DTC Lawrence repeated her intermeddling with papers submitted for filing, petitioner determined he could not rely on the integrity of the clerk’s office. After entreating the Hearing Department proved no avail, petitioner chose not to cooperate further with the sham proceedings. (Petition, ¶ 18.) The described malfeasance prevented petitioner from staying the action in the Hearing Department, prevented interlocutory review in the Review Department, prevented petitioner from challenging DTC Lawrence's discovery order, and constructively deprived petitioner of his right to a hearing on the merits. (Petition, ¶ 4.)

B. DTC Melanie J. Lawrence admitted she could not produce a proof of service, possession of which she would have lost only through foul play.

Petitioner repeatedly challenged DTC Lawrence to produce her service copy. (Petition, ¶ 24.) While vigorously denying the wrongdoing, she pointedly failed to produce the proof of service she admits accompanied the document served on her or explain why she could not produce it. (Petition, ¶ 25.) Ignoring this evidence is an admission by silence, as DTC Lawrence did not deny her inability to produce her proof of service, when confronted with a clear accusation that an innocent person in her position would usually deny. (See Evid. Code, § 1221; Estate of Neilson (1962) 57 Cal.2d 733, 746 .) DTC Lawrence admitted receiving an unsigned copy (Petition, ¶ 25), and her providing her copy to the clerk in an ex parte contact is the only explanation for her inability to produce it or to explain why she cannot produce it. The clerk's use of DTC Lawrence's service copy as a counterfeit proof of service establishes Lawrence colluded with the clerk to reject the document on bogus grounds.

2. The State Bar Court fosters hypertechnicalism in its clerk’s office, encouraging foul play, while offending due process.

The hypertechnicalism of the State Bar Court clerk's office encourages conduct such as that of DTC Lawrence, because of the ease in engineering a small deficiency. When it puts a litigant out of court, the effort may become worth a deputy trial counsel's risk. The hypertechnicalism flouts prohibiting case law, so that the rules governing the clerk's office do not conform to judicial standards and are a trap for the unwary. A procedural defect should not be fatal to a filing, and the fair practice would hold the documents for a limited time and allow the litigant to supplement the file. (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].)) The clerk had not destroyed all the documents as she claimed (Petition, ¶ 15)—her false claim violating Government Code section 6203--showing how allowing the clerk to destroy documents mailed for filing encourages malfeasance.

CONCLUSION

Constructive denial of petitioner’s access to the State Bar Court includes petitioning the Review Department. (Petition, ¶ 5.) Review by the California Supreme Court has become petitioner’s exclusive redress. Petitioner requests that the court overrule the Hearing Department’s disbarment order, entry of default, and enrollment as an involuntarily Inactive Member and, in the interest of justice, dismiss the case with prejudice or on other terms the court finds just.

Date:____________________

Respectfully submitted,

Legal Research and Writing Service
Supplier of Legal Theories

________________________________
Stephen R. Diamond

kanBARoo Court. Interlude 4. Decision of the Hearing Department

This is the State Bar Court's decision, which my Supreme Court Petition for Writ of Review contests. The decision arises from the default judgment taken by the State Bar. The unlawful default, engineered by the Office of the Chief Trial Counsel, allowed Judge Honn to accept all the prosecutrix's alleged facts as proven.

------------------------------------------

BEGIN QUOTED MATTER

FILED APRIL 10, 2008





STATE BAR COURT OF CALIFORNIA

HEARING DEPARTMENT - LOS ANGELES

=
In the Matter of

STEPHEN RONALD DIAMOND,

Member No. 183617,

A Member of the State Bar. )

)
)
) Case No.
05-O-04605-RAH
(05-O-04613; 05-O-04808;
05-O-04871; 06-O-10462;
06-O-10680; 06-O-11600)

DECISION AND ORDER OF INVOLUNTARY INACTIVE ENROLLMENT



I. Introduction
In this default disciplinary matter, respondent Stephen Ronald Diamond is charged with 28 counts of professional misconduct, including (1) forming a partnership with a non-attorney to operate a personal injury law practice in which respondent aided the non-attorney in the unauthorized practice of law; (2) failing to notify clients of receipt of settlement funds; (3) failing to maintain client funds in a trust account; (4) failing to communicate; (5) failing to return client files; (6) committing acts of moral turpitude, which involved client funds of at least $182,777; and (7) lending his name to be used by a non-attorney.
Based upon the egregious nature and extent of culpability, as well as the applicable aggravating circumstances, the court recommends that respondent be disbarred from the practice of law.



II. Pertinent Procedural History
The Office of the Chief Trial Counsel of the State Bar of California (State Bar) initiated this proceeding by filing a notice of disciplinary charges (NDC) on July 9, 2007, and properly serving it on respondent at his official membership records address.
Between August and December 2007, respondent filed various unsuccessful motions, including a motion to dismiss and request for immediate stay. But he never filed a response to the NDC.
Deputy Trial Counsel Melanie J. Lawrence of the State Bar requested that respondent's default be entered on three separate occasions but was denied.
On January 2, 2008, respondent failed to appear for the in-person hearing on the order to show cause. As a result, the court issued terminating sanctions pursuant to the order to show cause for respondent's failure to participate in discovery and ordered his default be entered immediately. Respondent was enrolled as an inactive member on January 5, 2008, under Business and Professions Code section 6007, subdivision (e).1 An order of entry of default was sent to respondent's official address.
This matter was submitted for decision on January 15, 2008, after the State Bar filed a brief on culpability and discipline. In its brief, the State Bar moved to strike certain allegations alleged in the NDC, count 25, regarding commingling personal funds with client funds in the CTA. The motion is hereby granted.
III. Findings of Fact and Conclusions of Law
All factual allegations of the NDC are deemed admitted upon entry of respondent's default unless otherwise ordered by the court based on contrary evidence. (Rules Proc. of State Bar, rule 200(d)(1)(A).)

A. Jurisdiction
Respondent was admitted to the practice of law in California on September 24, 1996, and has been a member of the State Bar since that time.
B. General Background
In mid-2004, Jae Bum Kim (Kim), a non-attorney, leased office space at 1200 Wilshire Blvd., Suite 312, Los Angeles, California, 90017 (the Wilshire Blvd. Office). Kim had previously worked as the office manager for an attorney at the same address. The attorney had consolidated his practice in another location, and Kim took over the lease.
Thereafter, Kim hired a staff of at least five case managers, including, but not limited to, Andy Shin (a.k.a. Andy Kim), Dana Chung, Robin Lee, Micky Park, and Evan Chang, and a receptionist, Elsa Villa (hereinafter referred to collectively and individually as "staff"), to form a putative law office. At the time, no attorney worked in the Wilshire Blvd. office.
In September 2004, Kim and respondent entered into an agreement regarding the formation of a personal injury law practice, known as Essence Professional Law Corporation or alternatively, as the Law Offices of Stephen R. Diamond, A Professional Law Corporation. Respondent opened a client trust account (CTA), account No. 046800046, and a business operating account (general account), account No. 500011734, at the Koreatown Galleria Branch of Hanmi Bank in Los Angeles.
Kim and staff, thereafter, through at least September 2005, signed up personal injury clients, performed legal work on their files, entered into settlement negotiations with defendants' insurance carriers, settled cases, endorsed settlement checks, made deposits and withdrawals from respondent's CTA, all pursuant to the September 2004 agreement entered into between Kim and respondent. Kim and staff speak Korean, and respondent does not. Most of respondent's clientele were Korean speaking.
Over the course of their one year association, respondent worked part-time in the Wilshire Blvd. office, and Kim paid respondent approximately $5,000 per month in cash. More than $1.33 million was deposited and withdrawn from respondent's CTA during that period. Activity ceased in the CTA at the end of September 2005; its balance was approximately $583, and remained at that sum through at least in January 2006.
More than 200 client matters were settled by Kim and staff from September 2004 to September 2005. The corresponding settlement checks were endorsed by Kim and staff, and deposited into the CTA. The funds from the settlements were thereafter withdrawn in the form of checks, primarily negotiated in two ways: cashing at a check cashing service located at 3rd Street Liquors in Los Angeles, near the Wilshire Blvd. office; or deposited directly into the general account. In both instances, the checks were routinely negotiated after affixing the purported endorsement of the payee.
C. Findings of Fact (The Yoo, Hong, Chung and Lee Matters)
1. The Yoo Matter (Case No. 05-O-04605)
In January 2005, Nan Young Yoo employed respondent, through Kim and staff at the Wilshire Blvd. office, to represent her in a personal injury matter arising out of a January 1, 2005 injury. Yoo was given and signed a contingency fee employment agreement. Thereafter, and over the period of several months, Yoo made several calls to the Wilshire Blvd. office, and left a message each time requesting a return call regarding the status of her case. No one returned Yoo's calls.
In March 2005, respondent, through Kim and staff, obtained from Yoo's insurer, Infinity Insurance Co., a check for $2,000, which represented payment for medical costs associated with her personal injuries. Yoo was never informed of the receipt of the $2,000 from Infinity, and never saw the check. Yoo's name, however, was signed by Kim and staff to the check and it was deposited into the CTA.
In June 2005, Kim and staff settled Yoo's case for $13,500, without obtaining Yoo's consent. Yoo's name, however, was signed by Kim and staff, without her knowledge or consent, to a settlement agreement provided by Farmers Insurance Co. (Farmers). Respondent performed no work on Yoo's case and was unaware of the settlement negotiations or ultimate settlement.
On June 28, 2005, Farmers sent a settlement check to respondent at the Wilshire Blvd. office, payable to respondent and Yoo, in the amount of $13,500 (the Yoo settlement check). Respondent caused or permitted the Yoo settlement check to be deposited into his CTA on June 29, 2005. Respondent did not inform Yoo of the receipt of funds on her behalf.
Two days before the settlement check was deposited into the CTA on June 27, 2005, a check for $7,000 was issued from that account, made payable to Yoo. Yoo's name was endorsed on the reverse of the $7,000 check, without her knowledge or consent, and it was cashed.
In September 2005, because she had not received any phone calls from respondent or anyone in his office, Yoo employed new counsel to investigate her claim. Yoo learned for the first time that her case had been settled.
Thereafter, Yoo complained through her new counsel, J. S. Kim, to respondent about the settlement of her case without her knowledge and the failure to distribute to her any portion of the Yoo settlement. On September 13, 2005, attorney Kim also requested that respondent forward Yoo's file. Respondent did not do so.
Instead, in his response to attorney Kim, he disavowed any knowledge of Yoo's case, claimed that he was not her attorney, never had been her attorney and owed her no duty, and blamed his office staff for the misconduct. Respondent claimed, further, that he had recently fired Kim and staff upon discovering they had signed medical liens without his permission.
2. The Hong Matter (Case No. 05-O-04613)
In late October 2004, Katie Lee, her parents (Moon Ja Hong and Myong Kook Hong), and daughter (Michelle Myers) (collectively, "the Hong clients") employed respondent, through Kim and staff at the Wilshire Blvd. office, to represent them in a personal injury matter arising out of an October 23, 2004 hit-and-run, automobile accident that resulted in personal injuries to each of them. On behalf of her family and herself, Katie met with Kim and staff. Kim introduced her to respondent immediately following her first and only meeting with him at the Wilshire Blvd. office. Over the period of the next several months, Katie made numerous calls to respondent's Wilshire Blvd. office, and left a message each time requesting a return call regarding the status of her case. No one returned her calls.
On November 1, 2004, Kim and staff sent a letter to State Farm Insurance Company on behalf of the Hong clients to begin the claims process. On November 9, 2004, Kim and staff sent further correspondence to State Farm, again referencing the Hong clients, individually, by name.
On May 9, 2005, Kim and staff submitted medical bills pertaining to the Hong clients' medical treatment. No billings, however, for Michelle were contained in the correspondence, and no demand for payment was made on her behalf.
On June 23, 2005, Kim and staff sent a demand letter to State Farm on behalf of the Hong clients. The settlement demands were, as follows: $11,000 for Katie, whose medical treatments amounted to approximately $4,345; $19,000 for Mrs. Hong, whose medical treatments amounted to approximately $9,715; and $30,000 for Mr. Hong, whose medical treatments amounted to approximately $19,472. No demand was made on behalf of Michelle. Respondent performed no work on the Hong clients' case and was unaware of the settlement negotiations or ultimate settlement.
Between May 11 and August 5, 2005, State Farm sent six settlement checks to respondent at the Wilshire Blvd. office, payable to respondent and the Hong clients, totaling $63,000, as settlement of the claims of Katie, and Mr. and Mrs. Hong. Respondent caused or permitted the settlement checks to be deposited into his CTA. Respondent did not inform the Hong clients of the receipt of funds on their behalf.
However, between May and August 2005, eight CTA checks were made payable to the Hong clients and Dr. Christopher Kim for a medical lien, as follows:

Date Payee Amount
5/17/05 Myong Kook Hong $2,000
5/18/05 Moon Ja Hong $2,0002
8/9/05 Katie Lee $7,000
8/15/05 Myong Kook Hong $9,000
8/15/05 Moon Ja Hong $7,500
8/18/05 Moon Ja Hong $9,0003
8/18/05 Michelle Myers $8,000
8/19/05 Dr. Christopher Kim $8,000
The Hong clients' and Dr. Kim's names were endorsed on the reverse of the checks without their knowledge or consent. The $7,000 check dated August 9 and the $9,000 check dated August 15 were deposited into respondent's general account. The other six checks were negotiated at 3rd Street Liquors.
In September 2005, because she had not received any phone calls from respondent or anyone in his office, Katie employed new counsel to investigate her claim. She then learned for the first time that her claim had been settled, as well as her parents' claims.
Thereafter, the Hong clients complained to respondent directly and through Katie's new counsel, Scott Meyers, about the settlement of their claims without their knowledge, and the failure to distribute any portion of their respective settlement funds to them. On September 28, 2005, Katie requested that respondent forward her file. He did not do so.
Instead, on September 28, 2005, respondent responded to Katie, disavowing any knowledge of her case or her parents' cases, claimed that he was not their attorney, never had been their attorney, and owed them no duty, and blamed his office staff for the misconduct. Respondent claimed further that he had recently fired Kim and staff upon discovering they had signed medical liens without his permission. Finally, respondent attempted to blame Katie for not being more vigilant about contacting him previously about the cases.
3. The Chung Matter (Case Nos. 06-O-10462 and 06-O-11600)
In June 2004, Wan Ki Chung and Jun Lee (husband and wife) were involved in an automobile accident resulting in personal injuries (the Chung matter). Mr. and Mrs. Chung initially employed attorney Frederick Lee to represent them. In November 2004, they employed respondent, through Kim and staff at the Wilshire Blvd. office, to represent them in their personal injury matter. Respondent's office sent attorney Lee a substitution of attorney, which attorney Lee executed in early December 2004, and returned, along with formal notice of his attorney's lien against any settlement, verdict or recovery obtained by respondent.
Also in January 2005, attorney Lee informed 21st Century Insurance, the carrier involved in the Chung matter, of his lien. In March 2005, attorney Lee sent respondent a letter, informing him that he would relinquish any claim for attorney fees in the Chung matter, but continued to assert his lien for costs actually advanced.
In July 2005, Kim and staff settled Mr. Chung's claim for $32,000 and Mrs. Chung's claim for $42,000, without obtaining their consent. Respondent performed no work on the Chung matter and was unaware of the settlement negotiations or ultimate settlement.
On August 2, 2005, 21st Century Insurance sent two settlement checks to respondent at the Wilshire Blvd. office: one made payable to respondent, Frederick Lee, and Wan Ki Chung for $32,000, and another to respondent, Frederick Lee, and Jun Lee for $42,000 (the Chung settlement checks). Respondent caused or permitted the Chung settlement checks to be deposited into his CTA on August 5, 2005. Respondent did not inform Mr. Chung or Mrs. Chung of the receipt of funds on their behalf.
Although their names were endorsed on the settlement checks, Frederick Lee and Mr. and Mrs. Chung were unaware that the case had settled, and did not endorse any of the settlement checks, and did not consent to the endorsement of their names by any other person.
However, six CTA checks were made payable to Mr. and Mrs. Chung and Dr. Chang Woo Ko for a medical lien, as follows:
Date Payee Amount
8/5/05 Wan Ki Chung $ 4,000
8/5/05 Jun Lee $ 7,500
8/8/05 Dr. Chang Woo Ko $ 5,000
8/8/05 Wan Ki Chung $ 7,500
8/18/05 Jun Lee $10,000
8/19/05 Wan Ki Chung $10,000
Mr. and Mrs. Chung's and Dr. Ko's names were endorsed on the reverse of the checks without their knowledge or consent. The August 5 check for $7,500 and the August 8 check for $5,000 were deposited into respondent's general account. The remaining checks were negotiated at 3rd Street Liquors.
In September 2005, Dr. Ko first learned that the Chung matter had settled, and contacted respondent by e-mail to attempt to collect on his medical liens of $6,160 and $7,460, respectively, for Wan Ki Chung and Jun Lee.
Respondent replied to Dr. Ko on September 28, 2005, disclaiming any knowledge of the Chung matter, questioning the veracity of Dr. Ko's assertion of his lien, and disputing the legitimacy of his billings for chiropractic care of Mr. and Mrs. Chung. Respondent claimed that he had been a victim of his employees, Kim and staff, and invited Dr. Ko to file a criminal complaint. Respondent asserted that he would not, however, report his former employees, as he did not possess sufficient evidence of any criminal action, and wished to avoid being named in a possible malicious prosecution claim.
In December 2005, attorney Lee learned from 21st Century Insurance that the Chung matter had settled in August 2005. Attorney Lee then complained to respondent about the settlement without a payment of his attorney's lien. In February 2006, attorney Lee wrote to respondent, informing respondent that his costs incurred during his representation of Mr. and Mrs. Chung totaled $2,754.35.
Respondent responded to attorney Lee, disavowing any knowledge of the Chung matter. He claimed that he was not their attorney, never had been their attorney and owed them no duty, and blamed his office staff for the misconduct. Respondent claimed, further, that he had recently fired Kim and staff.
4. The Lee Matter (Case No. 06-O-10680)
In September 2004, Seung Duk Lee and Sang Won Lee (the Lees) employed respondent, through Kim and staff at the Wilshire Blvd. office, to represent them in a personal injury matter arising out of a September 26, 2004 automobile accident.
Seung Duk Lee was informed by Kim and staff that he and Sang Won Lee would each receive one-third of the settlement funds, that respondent would get one-third, and that the medical provider would get one-third. Mr. Lee agreed that respondent could accept a settlement on his behalf, and purported to agree to the same terms on behalf of Sang Won Lee.
In February 2005, respondent received a $1,000 check for medical payment on behalf of Sang Won Lee and caused it to be deposited into his CTA. Neither Mr. Lee nor Seung Duk Lee were informed of the receipt of the $1,000 medical payment check.
In April 2005, Kim and staff negotiated a settlement of the Lees' claims with the adverse party's insurer, Auto & Home Insurance Plus: $9,000 for Seung Duk Lee and $4,000 for Sang Won Lee. On April 5, 2005, Auto & Home Insurance Plus sent checks in those amounts to the Wilshire Blvd. office. The respective checks were endorsed with the Lees' names, without their knowledge or consent, and deposited into the CTA. Respondent did not inform the Lees of the receipt of the settlement checks from Auto & Home Insurance Plus.
On April 8, 2005, a check for $4,000 was issued from the CTA, made payable to Sang Won Lee. Sang Won Lee's name was endorsed on the reverse of the $4,000 check without her knowledge or consent, and it was thereafter negotiated at 3rd Street Liquors.
In June 2005, Mr. Lee returned to the Wilshire Blvd. office to inquire about his case. He was informed that respondent was away on a business trip. The staff member he spoke to said that he had no information concerning the Lees' case.
In December 2005, because he had not received any communications from respondent or anyone in his office, Mr. Lee returned to the Wilshire Blvd. office, and found that respondent no longer occupied the office suite. He contacted Auto & Home Insurance Plus in January 2006 and learned for the first time that his case and Sang Won Lee's case had been settled.
Thereafter, Mr. Lee complained by letter to respondent about the settlement of the Lees' cases without their knowledge, and the failure to distribute to them any portion of the settlement funds.
Respondent responded to Mr. Lee, disavowing any knowledge of the Lees' case, and claimed that he was not their attorney, never had been their attorney and owed them no duty. He blamed his office staff for the misconduct. Respondent claimed, further, that he had recently fired Kim and staff upon discovering they had signed medical liens without his permission.
D. Conclusions of Law (The Yoo, Hong, Chung and Lee Matters)
1. Aiding the Unauthorized Practice of Law (Rules of Prof. Conduct, Rule 1-300(A))4 (Counts 1, 7, 17 and 21)
Respondent is charged in counts 1, 7, 17 and 21 with a violation of rule 1-300(A) of the Rules of Professional Conduct, which provides that a member must not aid any person or entity in the unauthorized practice of law.
By creating an environment in the Wilshire Blvd. office in which Yoo, the Hong clients, Mr. and Mrs. Chung, and the Lees could employ respondent without respondent's specific knowledge of the clients' identity, case or cause, and in which Kim and staff could negotiate with the insurance company and settle their cases, without any attorney supervision or client consent, respondent aided and abetted Kim and staff in the unauthorized practice of law.
Therefore, respondent, by clear and convincing evidence, willfully violated rule 1-300(A) by aiding Kim and staff in the unauthorized practice of law in counts 1, 7, 17 and 21.
2. Failure to Notify of Receipt of Client's Funds

(Rules Prof. Conduct, Rule 4-100(B)(1)) (Counts 2, 8, 18 and 22)

Respondent failed to notify a client promptly of the receipt of the client's funds, securities, or other properties in violation of rule 4-100(B)(1) in counts 2, 8, 18 and 22, as follows:
o By not informing Yoo of the receipt of the medical payment from Infinity or the Yoo settlement check from Farmers;
o By not informing the Hong clients of the receipt of the medical payments or settlement checks from State Farm;
o By not informing Mr. and Mrs. Chung of the receipt of their settlement checks from 21st Century Insurance; and
o By not informing the Lees of the receipt of the medical payment check for $1,000, and the settlement funds from Auto & Home Insurance Plus.
3. Failing to Maintain Client Funds in Trust Account
(Rules Prof. Conduct, Rule 4-100(A)) (Counts 3, 9, 19 and 23)
Rule 4-100(A) provides that all funds received for the benefit of clients must be deposited in a client trust account and that no funds belonging to the attorney must be deposited therein or otherwise commingled therewith. Respondent violated rule 4-100(A) in counts 3, 9, 19 and 23, as follows:
o By causing or permitting the issuance of a CTA check purporting to be payable to Yoo, in the amount of $7,000, to be negotiated two days prior to the deposit or receipt of the Yoo settlement, at a time when no funds were on deposit in the CTA for Yoo's benefit, respondent misused his CTA and misappropriated funds belonging to another client or clients;
o By causing or permitting CTA checks purporting to be payable to Moon Ja Hong and Myong Kook Hong, to be endorsed by one other than the respective clients and without the client's knowledge or consent, and then deposited into the general account, respondent misused and failed to maintain client funds in his CTA;
o By causing or permitting CTA checks purporting to be payable to Jun Lee and Dr. Ko to be endorsed by one other than the client and medical provider, respectively, and without the client's and medical provider's knowledge or consent, and then deposited into the general account, respondent misused and failed to maintain client funds his CTA; and
o By causing or permitting CTA a check purporting to be payable to Sang Won Lee to be endorsed and negotiated by one other than the client, and without the client's knowledge or consent, respondent misused his CTA.
4. Failure to Communicate (Bus. & Prof. Code, § 6068, Subd. (m)) (Counts 4 and 10)
Section 6068, subdivision (m), provides that it is the duty of an attorney to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.
Respondent willfully violated section 6068, subdivision (m), in counts 4 and 10, as follows:
o In the Yoo Matter, by not responding to Yoo's repeated, periodic phone messages requesting information regarding her case and by not informing Yoo that her case was settled; and
o In the Hong matter, by not responding to Katie's periodic phone messages requesting information regarding her and her parents' claims and by not informing the Hong clients that their claims had been settled.
5. Failure to Return Client File
(Rules Prof. Conduct, Rule 3-700(D)(1)) (Counts 5 and 11)
Rule 3-700(D)(1) requires an attorney whose employment has terminated to promptly release to a client, at the client's request, all the client's papers and property. Respondent willfully violated rule 3-700(D)(1) by not providing Yoo or her attorney, J. S. Kim, with Yoo's file upon J. S. Kim's request and by not providing Katie or her attorney, Scott Meyers, with Katie's file upon her request in counts 5 and 11.
6. Moral Turpitude (Bus. & Prof. Code, § 6106)(Counts 6, 12, 20 and 24)
Section 6106 prohibits an attorney from engaging in conduct involving moral turpitude, dishonesty or corruption.
Respondent willfully violated section 6106 in counts 6, 12, 20 and 24, involving a total of $166,500 in client funds, as follows:
o By causing or permitting the Yoo settlement agreement, the $2,000 medical payment check from Infinity, and the $13,500 check from Farmers to be endorsed and negotiated by one other than Yoo, and by not paying Yoo or anyone on her behalf, including any medical provider, any portion of the $15,500 received on her behalf;
o By causing or permitting the Hong clients' medical payment checks from State Farm, and the settlement checks from State Farm to be endorsed and negotiated by one other than Katie Lee, Moon Ja Hong, or Myong Kook Hong, and by not paying the Hong clients or anyone on their behalf, including any medical provider, any portion of the $63,000 received on their behalf;
o By causing or permitting the Chung settlement checks from 21st Century Insurance to be endorsed and negotiated by one other than Wan Ki Chung and Jun Lee, by not paying Wan Ki Chung or Jun Lee or anyone on their behalf, including any medical provider, any portion of the $74,000 received on their behalf, by not honoring attorney Frederick Lee's lien for advanced costs, and by not honoring Dr. Ko's lien for medical services provided, signed by respondent or on his behalf;
o By causing or permitting the $1,000 medical payment check, the $9,000 settlement check for Seung Duk Lee and the $4,000 check for Sang Won Lee, all from Auto & Home Insurance Plus, to be endorsed and negotiated by one other than the Lees, and by not paying the Lees or anyone on their behalf, including any medical provider, any portion of the $14,000 received on their behalf; and
o By later disavowing any and all responsibility toward his clients and to third parties to whom he had become a fiduciary.
E. Findings of Fact (The Son, Kwon, Kim and Yeum Matters (Case No. 05-O-04808))
This case involved four clients, Sonny Son, David Kwon, Mi Young Kim, and Crystal Sang Sook Yeum. All of whom sought and received treatment from Hyo-Jo Pain Control and Rehabilitation and its proprietor, Richard Kim, D.C. The clients and respondent entered into a medical lien for Dr. Kim's services. After Dr. Kim passed away, attorney Scott Meyers represented Elizabeth Kim, Dr. Kim's widow, in an attempt to obtain payment for the liens. He and respondent agreed to settle those four liens and respondent gave attorney Meyers assurances that he would instruct his staff to pay the liens. To date, respondent has not made any payment to Dr. Kim's estate or to Hyo-Jo Pain Control and Rehabilitation.
1. The Son Matter
In 2004, respondent was employed to represent Sonny Son in a personal injury matter. Son sought and received treatment from Dr. Kim. Respondent and Son entered into a lien for Dr. Kim's services.
Respondent settled Son's case in November 2004, and received a settlement check for $3,442, payable to respondent and Son. On November 30, 2004, respondent caused the check to be deposited into his CTA, and immediately withdrew $2,442 as attorneys fees from the settlement. No sums were disbursed from the settlement to Son or to anyone else on her behalf, including Dr. Kim.
In July 2005, attorney Meyers contacted respondent in an attempt to obtain payment for the Son's lien. Believing that Son's case had settled for only $2,500, attorney Meyers agreed to accept $833.33 as full payment of the lien held for Son's treatment.
2. The Kwon Matter
In 2004, respondent was employed to represent David Kwon in a personal injury matter. Kwon sought and received treatment from Dr. Kim. Respondent and Kwon entered into a lien for Dr. Kim's services.
Respondent settled Kwon's case in November 2004, and received a settlement check for $4,500, payable to respondent and to Kwon. On November 22, 2004, respondent caused the check to be deposited into his CTA. Immediately thereafter, a check was written from the CTA in the amount of $4,500, payable to Kwon. No sums were disbursed from the settlement to anyone else from the Kwon settlement, including Dr. Kim. Respondent ostensibly took no fee for Kwon's representation.
In July 2005, attorney Meyers contacted respondent in an attempt to obtain payment for the Kwon lien. Attorney Meyers agreed to accept $1,500 as full payment of the lien held for Kwon's treatment.
3. The Kim Matter
In 2004, respondent was employed to represent Mi Young Kim in a personal injury matter. Kim sought and received treatment from Dr. Kim. Respondent and Kim entered into a lien for Dr. Kim's services.
Respondent settled Kim's case in January 2005, and received a settlement check for $1,835.15, payable to respondent and to Mi Young Kim. On January 27, 2005, respondent caused the check to be deposited into his CTA. Immediately thereafter, respondent withdrew the entire sum from the CTA as attorney fees. No sums were disbursed from the settlement to anyone else, including Dr. Kim.
In July 2005, attorney Meyers contacted respondent in an attempt to obtain payment for the Mi Young Kim lien. Attorney Meyers agreed to accept $611.71 as full payment of the lien held for Mi Young Kim's treatment.
4. The Yeum Matter
In 2004, respondent was employed to represent Crystal Sang Sook Yeum in a personal injury matter. Yeum sought and received treatment from Dr. Kim. Respondent and Yeum entered into a lien for Dr. Kim's services.
Respondent settled Yeum's case in April 2005, and received a settlement check for $6,500, payable to respondent and to Yeum. On April 12, 2005, respondent caused the check to be deposited into his CTA, and immediately withdrew $1,300 as attorneys fees from the settlement. A check was issued from the CTA in the amount of $4,300, payable to Yeum, as well as a check in the amount of $600 made payable to Dr. Kim. Although the check to Dr. Kim was endorsed and negotiated, Dr. Kim never in fact received it, or any funds from the settlement of Yeum's case. In fact, the check was endorsed and negotiated after Dr. Kim's death.
In July 2005, attorney Meyers contacted respondent in an attempt to obtain information as to whether the Yeum case had settled. Respondent did not respond.
F. Conclusions of Law (Case No.05-O-04808)
Moral Turpitude (Bus. & Prof. Code, § 6106) (Counts 13-16)
Respondent willfully violated section 6106 in counts 13 through 16, involving a total of $16,277 in settlement funds, as follows:
In count 13, by not disbursing any funds to Dr. Kim (or his successors in interest) for treatment of Son, despite entering into a lien with him and Son for Son's treatment, by withdrawing $2,442 as fees immediately upon depositing Son's settlement check of $3,442, and by not disbursing any further sums to Son, or to anyone else on her behalf;
o In count 14, by not disbursing any funds to Dr. Kim (or his successors in interest) for treatment of Kwon, despite entering into a lien with him and Kwon for Kwon's treatment;
o In count 15, by not disbursing any funds to Dr. Kim (or his successors in interest) for treatment of Mi Young Kim, despite entering into a lien with him and Mi Young Kim for Mi Young Kim's treatment; and
o In count 16, by not disbursing any funds to Dr. Kim (or his successors in interest) for treatment of Yeum.
G. Findings of Fact (Client Trust Account (Case No. 05-O-04871))
On September 6, 2005, check No. 1412, written on respondent's CTA, in the amount of $2,000, was paid against insufficient funds. The resulting balance in the CTA, after payment of the check was ($807.82).
On September 23, 2005, respondent caused a check to be drawn on his CTA, payable to the general account, in the amount of $6,000 (check No. 1418). Respondent personally drafted the check, and affixed his signature on the reverse as an endorsement for deposit.
On the same day, respondent then deposited check No. 1418 into his general account and issued a check from his general account, payable to "CASH for Cashier's Check," in the amount of $6,000 (check No. 1877). Respondent in fact purchased a cashier's check in the amount of $6,000 with check No. 1877.
Thereafter, respondent deposited the $6,000 cashier's check into his personal bank account.
H. Conclusions of Law (Client Trust Account)
1. Preserving Identity of Client Funds
(Rules Prof. Conduct, Rule 4-100(A)) (Count 25)
By issuing a check from his CTA in an amount exceeding the balance of funds on deposit at the time of the check's issuance, respondent misused his client trust account, in willful violation rule 4-100(A).
2. Moral Turpitude (Bus. & Prof. Code, § 6106) (Count 26)
By issuing a $6,000 CTA check, depositing it into his general account, then purchasing a $6,000 cashier's check with a check from the general account, and finally depositing the cashier's check into his personal account, respondent engaged in a scheme to defraud, attempted to and did commit money laundering, and misused his CTA, thereby committing an act or acts involving moral turpitude, dishonesty or corruption in willful violation of section 6106.
I. Conclusions of Law (Partnership with a Non-Lawyer and Misuse of Name)
1. Forming a Partnership with a Non-Lawyer (Rules Prof. Conduct, Rule 1-310) (Count 27)
Rule 1-310 prohibits an attorney from forming a partnership with a person who is not a lawyer if any of the activities of that partnership consist of the practice of law.
By entering into an agreement with Kim and staff that allowed them to enter into employment agreements with clients, negotiate with adverse parties and insurers, make deposits and withdrawals into his CTA, and have ongoing access to funds from the CTA, in exchange for cash payments each month, respondent formed a partnership with a person or persons who are not lawyers in which the principal activities of the partnership was the practice of law, in willful violation of rule 1-310.
2. Permitting Misuse of Name (Bus. & Prof. Code, § 6105) (Count 28)
Section 6105 provides that lending his name to be used as attorney by another person who is not an attorney constitutes a cause for disbarment or suspension.
By entering into an agreement with Kim and staff that allowed them to enter into employment agreements with clients, negotiate with adverse parties and insurers, make deposits and withdrawals into his CTA, and have ongoing access to funds from the CTA, all while failing to exercise or require any supervisory control of the activities of the practice of law in Essence Law Corporation and Stephen R. Diamond, A Professional Law Corporation, by himself or another attorney, in exchange for compensation made in the form of cash payments of approximately $5,000, each month, respondent loaned his name to be used as attorney by another person or persons who were not attorneys.
IV. Mitigating and Aggravating Circumstances
A. Mitigation
No mitigating factor was offered or received into evidence. (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(e).)5
Although respondent had no record of prior discipline in his eight years of practice when the misconduct began in 2004, his lack of record is only given minimal credit as mitigation because his present misconduct is very serious. (Std. 1.2(e)(i).)
B. Aggravation
There are several aggravating factors. (Std. 1.2(b).)
Respondent committed multiple acts of wrongdoing and some of the misconduct demonstrate a pattern of misconduct involving at least 13 clients, including forming a law partnership with a non-attorney; aiding the unauthorized practice of law; committing acts of moral turpitude; failing to notify clients of receipt of settlement funds; failing to maintain client funds in a trust account; failing to communicate; failing to return client files; and lending his name to be used by a non-attorney. (Std. 1.2(b)(ii).)
Respondent's misconduct harmed significantly his clients, the public or the administration of justice. (Std. 1.2(b)(iv).) The clients did not receive their full portion of settlement proceeds. The medical providers were not paid for their services, despite the liens. The public is indeed harmed by Kim and staff's fraudulent law practice.
Respondent demonstrated indifference toward rectification of or atonement for the consequences of his misconduct. (Std. 1.2(b)(v).) Respondent has not shown remorse or apologized to his clients, nor took any remedial action on behalf of his clients. He has yet to pay his clients or the medical providers. Respondent failed to come to grips with his culpability in asserting that he was never the attorney for the complaining clients and that he owed them no duty and blaming Kim and staff for defrauding them. He also blamed his clients for not being more vigilant about contacting him earlier. In fact, these clients left him numerous phone messages but all to no avail. Instead of contrition, respondent went to great lengths in his pretrial motions to blame the State Bar for unfounded misdeeds. "Respondent's use of specious and unsupported arguments in an attempt to evade culpability in this matter reveals a lack of appreciation both for his misconduct and for his obligations as an attorney." (In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 647.) "The law does not require false penitence. [Citation.] But it does require that the respondent accept responsibility for his acts and come to grips with his culpability. [Citation.]" (In the Matter of Katz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 502, 511.) Here, respondent has accepted no responsibility.
Respondent's failure to cooperate with the State Bar before the entry of his default is also a serious aggravating factor. (Std. 1.2(b)(vi).) He failed to file an answer to the NDC despite the multiple opportunities afforded him to do so. He failed to appear at his deposition despite the order compelling his compliance with discovery. Finally, he failed to appear for the OSC hearing re sanctions.
V. Discussion
The purpose of State Bar disciplinary proceedings is not to punish the attorney, but to protect the public, to preserve public confidence in the profession and to maintain the highest possible professional standards for attorneys. (Chadwick v. State Bar (1989) 49 Cal.3d 103, 111; Cooper v. State Bar (1987) 43 Cal.3d 1016, 1025; std. 1.3.)
In determining the appropriate level of discipline, the court looks first to the standards for guidance. (Drociak v. State Bar (1991) 52 Cal.3d 1095, 1090; In the Matter of Koehler (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 615, 628.)
The Supreme Court gives the standards "great weight" and will reject a recommendation consistent with the standards only where the court entertains "grave doubts" as to its propriety. (In re Silverton (2005) 36 Cal.4th 81, 91, 92; In re Naney (1990) 51 Cal.3d 186, 190.) Although the standards are not mandatory, they may be deviated from when there is a compelling, well-defined reason to do so. (Bates v. State Bar (1990) 51 Cal.3d 1056, 1061, fn. 2; Aronin v. State Bar (1990) 52 Cal.3d 276, 291.)
Standard 1.6(a) provides that, when two or more acts of misconduct are found in a single disciplinary proceeding and different sanctions are prescribed for those acts, the recommended sanction is to be the most severe of the different sanctions.
Standards 2.2(b), 2.3, 2.4(b), 2.6 and 2.10 apply in this matter.
Standard 2.2(b) provides that the commission of a violation of rule 4-100 must result in at least a three-month actual suspension, irrespective of mitigating circumstances.
Standard 2.3 provides: "Culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client or another person or of concealment of a material fact to a court, client or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member's acts within the practice of law."
Standard 2.4(b) provides that culpability of failing to communicate with a client must result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Standard 2.6(a) provides for discipline ranging from suspension to disbarment for violations of section 6068, subdivision (m), depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
Finally, standard 2.10 provides that culpability of other provisions of the Business and Professions Code or Rules of Professional Conduct not specified in these standards must result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Respondent has been found culpable of serious misconduct involving at least 13 clients in this proceeding.
The State Bar urges disbarment, citing In the Matter of Jones (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 411 (two years of actual suspension), In the Matter of Malek-Yonan (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 627 (18 months of actual suspension), and In the Matter of Bragg (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 615 (one year of actual suspension) in support of its recommended discipline. The State Bar argues that because respondent's misconduct and the aggravating factors are more serious than those found in Jones, Malek-Yonan and Bragg, respondent should be disbarred.
Jones involved an attorney who allowed a non-attorney to operate a large scale personal injury practice involving capping, forgery and other fraudulent practices in the attorney's name for more than two years. The non-attorney handled all aspects of the personal injury practice without any supervision from Jones. Nearly $60,000 withheld from client settlements was misused. In mitigation, the attorney turned the non-attorney in to the police and cooperated with the authorities which resulted in a felony conviction for forgery and also turned himself in to the State Bar, established his good character and community activities and paid nearly $57,000 of his own money to medical providers to remedy the non-attorney's misconduct. In aggravation, the attorney committed multiple acts of misconduct and caused considerable harm to medical providers. The attorney was actually suspended for two years with a three-year stayed suspension and a three-year probation.
Unlike Jones, there is no mitigating evidence, such as turning Kim and staff in to the police or cooperated with the authorities, establishing good character witnesses or community services, or paying the medical providers to make amends. Other than claiming that he fired Kim and staff, there is no evidence on whether he stopped the mishandling of his client trust account so to protect his client funds from further theft. Furthermore, respondent's aggravating evidence is more serious than that of Jones. Respondent lacked any understanding of his wrongdoing and insisted on blaming his staff for the fraudulent practices. He also committed additional acts of dishonesty, such as money laundering and causing a negative balance in his client trust account.
The court also finds guidance in In the Matter of Steele (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 708. There, the attorney for more than two years allowed his office manager, a non-lawyer, to run his practice, sign client trust account checks and handle all financial transactions without supervision. Despite evidence that the non-attorney was telling clients that he was Steele's partner and evidence that the non-attorney was embezzling funds, Steele did nothing to prevent further theft of client funds. Steele also personally committed other acts of dishonesty. In aggravation, Steele lacked candor during the disciplinary proceeding and committed multiple acts of misconduct. Very little mitigation was found. The attorney was disbarred.
Like Steele, respondent formed a reprehensible partnership with Kim. He completely abdicated his basic professional responsibilities as an attorney to properly supervise his client trust account and his law practice. In exchange for collecting $5,000 a month from Kim, respondent allowed Kim and staff almost free rein to perform such professional responsibilities in his name. As a result, more than 200 client matters were settled by Kim and staff; more than $1.33 million was deposited and withdrawn from respondent's client trust account; settlement funds involving $182,777 were withheld for payment to clients and medical providers; and forgery and fraudulent practices were order of the day. By the end of September 2005, the client trust account balance was only $583.
Respondent's misconduct reflects a blatant disregard of professional duties. He had flagrantly breached his fiduciary duties to his clients and abused their trust as their attorney.
It is settled that an attorney-client relationship is of the highest fiduciary character and always requires utmost fidelity and fair dealing on the part of the attorney. (Beery v. State Bar (1987) 43 Cal.3d 802, 813.) The Supreme Court noted that "[t]he essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party." (Id.)
In this matter, respondent had abused his clients' trust and allowed Kim and staff to abscond thousands of dollars from settlement funds. Their taking of the funds is tantamount to misappropriation and respondent is responsible for their acts. The misappropriation of client funds is a grievous breach of an attorney's ethical responsibilities, violates basic notions of honesty and endangers public confidence in the legal profession. In all but the most exceptional cases, it requires the imposition of the harshest discipline - disbarment. (Grim v. State Bar (1991) 53 Cal.3d 21.)
Moreover, respondent's misuse of his CTA involving client funds of $182,777 and act of money laundering when he issued the $6,000 for himself were acts of dishonesty which "manifest an abiding disregard of the fundamental rule of ethics - that of common honesty - without which the profession is worse than valueless in the place it holds in the administration of justice." (Levin v. State Bar (1989) 47 Cal.3d 1140, 1147.) In recommending discipline, the "paramount concern is protection of the public, the courts and the integrity of the legal profession." (Snyder v. State Bar (1990) 49 Cal.3d 1302.) "It is clear that disbarment is not reserved just for attorneys with prior disciplinary records. [Citations.] A most significant factor . . . is respondent's complete lack of insight, recognition, or remorse for any of his wrongdoing." (In the Matter of Wyshak (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 70, 83.) An attorney's failure to accept responsibility for actions which are wrong or to understand that wrongfulness is considered an aggravating factor. (Carter v. State Bar (1988) 44 Cal.3d 1091, 1100-1101.) Instead of cooperating with the State Bar or rectifying his misconduct, respondent defaulted in this disciplinary proceeding.
Respondent "is not entitled to be recommended to the public as a person worthy of trust, and accordingly not entitled to continue to practice law." (Resner v. State Bar (1960) 53 Cal.2d 605, 615.) Respondent's failure to participate in this hearing leaves the court without information about the underlying cause of respondent's offense or of any mitigating circumstances surrounding his misconduct. Therefore, based on the severity of the offense, the serious aggravating circumstances, the standards and the case law, the court concludes that the appropriate level of discipline is disbarment. "We believe that the public is therefore at risk unless respondent is required to successfully complete a reinstatement proceeding before again being allowed to practice law in this state." (In the Matter of Priamos (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 824, 830)
VI. Recommended Discipline
Accordingly, the court recommends that respondent Stephen Ronald Diamond be disbarred from the practice of law in the State of California and that his name be stricken from the roll of attorneys in this state.
The court recommends that respondent be ordered to comply with California Rules of Court, rule 9.20, and to perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 calendar days, respectively, after the effective date of the Supreme Court order in this matter.
Finally, the court recommends that costs be awarded to the State Bar in accordance with Business and Professions Code section 6086.10 and are enforceable both as provided in Business and Professions Code section 6140.7 and as a money judgment.
VII. Order of Inactive Enrollment
In accordance with Business and Professions Code section 6007, subdivision (c)(4), it is ordered that respondent be involuntarily enrolled as an inactive member of the State Bar of California effective three days after service of this decision and order (Rules Proc. of State Bar, rule 220(c)).

Dated: April ___, 2008. __________________________________________


RICHARD A. HONN
Judge of the State Bar Court

END QUOTED MATTER