93rd Installment. Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen R. Glass embarrassment

Three years ago, the California State Bar’s Office of the Chief Trial Counsel became the state-bar establishment’s laughing stock when it had to admit that, during an eight-year period, it lost $675,000 to a single thieving clerk. Today, the Bar Court takes its turn at displaying ineptitude that will make the state-bar establishments throughout the country cringe. The State Bar Court Hearing Department, the nefarious Judge Richard A. Honn presiding, reversed the State Bar Board of Bar Examiners to allow the fraud Stephen R. Glass to be admitted to the bar. Judge Honn was affirmed by a 2 – 1 vote in the Review Department, but the California Supreme Court will hear the case on writ of review to decide whether Glass presented sufficient evidence to adjudge him rehabilitated. Glass’s application is a joke, and the Supreme Court will reverse the Review Department. (Jack Shafer sets out the facts of the case in a piece I recommend.) 

Glass wrote for The New Republic news magazine, which fired him in 1998 after he had fabricated facts for more than forty articles, deceiving a mass readership by lying to his editor and submitting manufactured evidence to his fact checkers to validate his content. His case for admission in California—New York rejected him—consisted of two parts: he explained the origin of his lying ways by claiming his parents were harsh and demanding, and he vouchsafed his present moral character with 22 character witnesses. His tales about his parents bending the twig are fraught with obvious problems regarding the relevance of the psychological speculation and the credibility of a liar, and record evidence rebuts his rehabilitation. Glass hid half his fraudulent articles from the New York State Bar; he claimed he had corresponded with victims of his libels years before he did in fact; and he lacked compunction about continuing to benefit for years from his ill-gotten gains, even profiting from a novel retelling his adventures in fraud.

I’m unconcerned here with Glass’s fate, concerned only with what the State Bar Court’s findings reveal about its workings. Why were Judge Honn and two judges on the Review Department panel taken in by an obvious psychopath, his schmaltzy childhood stories, and his demonstrated ability to manipulate benefactors—like his character witnesses?

The first reason is the Bar Court’s delight in spectacles of feigned contrition. Glass staged a grand spectacle, not only his huge witness list but also his groveling before the court. Trained to administer “discipline” by humiliation, Honn and company found Glass’s obsequiousness irresistible.

The second reason Glass could dupe the Bar Court is its prejudice favoring large law firms. Glass works for a highly capitalized plaintiffs' firm, Carpenter, Zuckerman & Rowley, which is rich enough to take on the largest defense firms and is, for practical purposes, in their league. The State Bar proved it would not hold big law accountable when Girardi and Lack escaped any State Bar censure after the Ninth Circuit Court of Appeals had found malfeasance.

The third reason is that the California State Bar, due to its commitment to political correctness, will treat homosexual petitioners and respondents capriciously. Sometimes, as here, the court can’t resist a gay sob story; whereas in other cases, such as Tore B. Dahlin’s, it penalizes excessively. Moralism, hyper-emotionality, and authoritarianism combine to make a measured response to homosexual petitioners and respondents impossible.

 
You didn’t know that Glass was homosexual? Neither did most others if they hadn’t read the novel or seen the movie, but Glass’s sexual orientation is relevant—because he put the etiology of his conduct disorder at issue. Judge Honn avoided drawing connections, despite Glass’s childhood gripes’ obvious relationship, for example, his unpopularity in school and his unease when playing the husband's role in a childhood skit. Judge Honn’s psycho-babble, combined with Honn’s avoidance of themes that offend political correctness or contradict Glass’s personal narrative, show the State Bar Court is incapable of fulfilling its most rudimentary obligation: excluding psychopaths from the profession.

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

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

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

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

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

To understand this blog:

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

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

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

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

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

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

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

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

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

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

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

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

To best understand this blog,

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

kanBARoo Court, 12th Installment. Lies of the State Bar

Even when you grasp that the California State Bar is oppressive and deceptive in pleading, you may remain incredulous that it lies outright. Yet trafficking in lies is its standard mode of operation. The State Bar's self-protective rules have perpetuated such incompetence that only by the lie can the State Bar hope to prevail.

The State Bar's Review Department remains unknown to me first-hand, and of it I venture no opinion. That will change, as I filed a Petition for Review. I also filed, as standard procedure, a Hearing Department motion to stay proceedings. Without a stay, the rush of events will moot the interlocutory review, grounded in the irreparable harm following from invasions of privacy unwarranted by proper notice of disciplinary charges, subjecting me to lawless State Bar fishing expeditions. Whether the State Bar has stated a disciplinary charge must be finally determined before the case continues.

As I expected, the Office of the Chief Trial Counsel opposed my motion for a stay. Tenacious procedural obstruction has always been the staple of incompetent lawyers, who, when blessed with power and entrusted with responsibility, seek support for their obstructionism in prevarication. Deputy Trial Counsel Melanie J. Lawrence writes in her opposition, "To date, Respondent has not filed a Response to the NDC." She adds the prevaricating footnote, "By Order dated November 9, 2007, the Court ordered Respondent to file a Response by November 25, 2007."

In fact the Hearing Department judge has always maintained that when the court orders filing a response, it means a responsive pleading. The court has also stated it will not issue advisory rulings. The court did not issue an advisory ruling to answer the NDC, when it ordered a response. Yet the Deputy Trial Counsel shamelessly misrepresents the procedural history to the court. The Rules of Procedure promote these lies, as they allow no reply brief to the Office of Chief Trial Counsel's opposition and provide for no oral argument.

So far I have violated no State Bar rules or California laws. Now readers shall get to witness an actual violation, although I maintain applying the rule here is unconstitutional. The rule states that settlement conference briefs are confidential, but I am going to disclose what Deputy Trial Counsel stated in her settlement brief. I shall disclose this confidential information because restraining my speech constrains my rights. Deputy Trial Counsel lied in her settlement proposal. She thought her lies would escape detection, because she knew I would not submit a rebuttal or attend the conference, consistent with my contending the court's ruling on November 9 stayed the proceeding until November 25.

Lawrence grasped at the opportunity to lie to the refereeing court. The distortions were numerous, but the overt lie concerned what are termed mitigating factors. Lawrence stated there were none, a lie.She knows of major mitigating factors, as I abundantly acquainted Lawrence with them, not as mitigating factors but as evidence of innocence:

1. Immediately upon discovering the fraud by staff, I closed my law office.
2. After recognizing that handling money is not my forte, I have not represented clients.

Mitigating factors do not concern me, because they apply only where guilty. Lawrence, however, lies about the mitigating factors to blacken my reputation with the judges and portray me as conscienceless.

Prosecutors are supposed to show greater ethical constraint than civil plaintiffs. Bar prosecutors, entitled to a measure of co-operation from respondents, might be expected to reciprocate by showing, not honesty, but a reluctance to perpetrate gross lies and deceit. Lawyers expecting respect for truth when they face the California State Bar are naive about that bureaucratic parasite.