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.

63rd Installment. State Bar Court Review Department: Remorseless Demagogues Lamenting Remorse’s Absence

The California State Bar Court's Review Department is prone to apply a remarkably totalitarian standard in assigning aggravations to offenses: it assigns an aggravation for lack of remorse if respondent denies his culpability. (See Rules Proc. State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(b)(v) [standards for aggravation].) The Review Department is apt to play this mean trick when it wants to affirm the Hearing Department's discipline but can't justify it fairly. The Review Department may further contend that respondent's theory of the case shows respondent is apt to re-offend. Aspersions on the political motives of judges — who, as elected officials, no doubt have political motives — the Review Department receives clinically, as symptoms enhancing the likelihood of repeating. These holdings ignore California law, as California prohibits using a not-guilty plea as evidence of absence of remorse. (People v. Coleman (1969) 71 Cal.2d 1159, 1168.) California law, unfortunately, allows using absence of remorse as a sentencing factor. The hypocritical attitude toward remorse is one of the worst examples of the rampant formalism in criminal law. Remorse is well suited as entry point for the bleakest expressions of the State Bar's show-trial mentality.

The nearly universal practice of using remorse for sentencing intrudes an unctuous sentimentalism into the courtroom. Where is respect for truth when the criminal court punishes honesty and rewards hypocrisy? This regressive parentalism infantilizes participants. Absence of remorse is said to predict recidivism, but defenders of remorse-based sentencing don't present data to support this claim. In natural settings the truly remorseful prove themselves free of that developmental absence of morality termed psychopathy, but psychopaths are often skilled actors. A persuasive show of remorse is too ambiguous for assessing defendants' intractability.

Criminal defendants who plead not guilty, as opposed to those who show their lack of remorse despite a guilty plea, are more likely to repeat and are harder to rehabilitate, but just where remorse is predictive, its use is illegitimate. To require remorse of a defendant who claims innocence violates due process at its foundation, the right to be heard. A defendant doesn't exercise this right when the state puts gun to his head and tells him what to say.

Some courts hold that, after the court convicts him, it can penalize the defendant for lack of remorse if he still denies guilt. But even in the sentencing phase, a defendant can maintain that the high likelihood his conviction was error mitigates the offense, and as it is illegitimate to demand that a respondent claiming innocence show remorse, it is also illegitimate to demand that one admitting guilt acquiesce to the state's view of his offense. Either restriction fetters defendants' arguments.

Sentencing based on whether defendant shows remorse is a common-law inheritance that should be invalidated on constitutional grounds. Criminal-court jurisprudence bases controlling distinctions on where in the trial sequence the court applies a standard, but only in the mind of a formalist lawyer (or a nonprofessional who accepts folk ideology as truth) is there a difference in principle between charging a person for a thought crime or increasinng a sentence for a subsequent thought crime.

Any constraint besides persuasiveness on the content of a defendant's courtroom speech limits persuasiveness by penalizing its straightforward pursuit. A constraint on defendants' and respondents' persuasiveness in the courtroom violates their right to be heard.

(See also 33rd Installment. Remorselessness.)

kanBARoo Court. 30B Installment. The State Bar Violates Richard Fine's First Amendment Rights

Litigants defending against legal oppression must contest questions of law, yet litigating the law, as opposed to the facts, requires different skills than trial lawyers possess. Lawyers understand that appellate attorneys form a distinct breed, but the fact-laden content of motions initiating trial-court summary procedures lends them the deceptive appearance of trial-attorney work. Of trial lawyers like Fine innocent of wrongdoing, the few who jurisdictionally attack the notice of disciplinary charges (NDC) sometimes overlook appellate opportunities. While Fine may not be able to undo the omission, Fine's appellate opportunity clarifies the injustice of State Bar intervention into Fine's judicial disputes, implicating Fine's U.S. Constitutional First Amendment rights.

California's Code of Civil Procedure contains an antiSLAPP provision, a special summary procedure. (See Code Civ. Proc., § 425.16.) The California Legislature declares its purpose in the body of the statute:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

The Anti-SLAPP statute provides a special summary procedure and an automatic right of appeal with regard to actions that include, among other legal targets:

[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law… (Code Civ. Proc., § 425.16, subd. (e)(1).)

State Bar v. Fine is the State Bar's legal action against Fine's judicial written and oral statements, subjecting the action to an anti-SLAPP motion unless the statutory exceptions preclude application. The exceptions are not preclusive, including:

This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor

The office of the Chief Trial Counsel goes unmentioned, as the State Bar is a public corporation, neither connected with any other prosecutor's office nor representing the People.

Filing an anti-SLAPP motion brought to enforce the higher standards of initial proof applied to liberty-chilling legal actions, such as the one by the State Bar against Fine, could win: respondent's legal fees, dismissal with prejudice, and an immediate appeal to the Court of Appeal — bypassing the dubious State Bar Court Review Department — if the Hearing Department denies his anti-SLAPP motion. The Legislature passed the anti-SLAPP statute to protect First Amendment civil liberties by filtering out oppressive lawsuits seeking to deny exercise of basic democratic rights. But consider, if the Legislature worries about the chilling effect of civil suits, such as defamation or malicious prosecution, did it intend to allow draconian State Bar actions against political speech and petitions addressed to the courts? Because Fine addressed the court alone, public-protection considerations don't justify the Bar’s intervention. The Bar doesn't accuse Fine of acts of fraud or misappropriation perpetrated on the public but of vexatious speech before judicial officers holding the contempt power. That power must deter stubbornly frivolous motions — to present the worst-case characterization — since otherwise a judge confronting a contumacious non-attorney in pro per would forfeit control of the court. No emergency arose to justify State Bar intervention against Fine's acts of petition before courts of law.

While Fine arguably waived his right to file an anti-SLAPP motion under a statutory time bar, a more perspicacious account is that the State Bar through its rules denied Fine his right to file an anti-SLAPP motion because the State Bar Court Rules of Procedure makes the motion to dismiss the NDC available as Bar-Court respondents’ exclusive summary procedure. Fine might successfully contend that after relying on its coercive procedures the State Bar is estopped from excuse by Fine's omission below.

Most importantly for Fine — unheard of by the State Bar or the State Bar defense establishment — a defendant/respondent may appeal a trial court's denial of an anti-SLAPP motion, as opposed to petitioning for review. Fine might hope to assert the still substantial remnant of his right to a hearing on appeal before the California Second District.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

kanBARoo Court. 24th Installment. What next?

To formulate a legal strategy, I had to determine whether I was dealing with a court, and, if so, from where emanated its jurisprudential imperatives. If the State Bar Court extinguished due process and not merely denied it, my arguments would be self-defeating, leaving “cooperation” with the State Bar the only viable tactic — meaning admit guilt, express remorse, and settle the case by stipulation. This conclusion would vindicate the State Bar defense establishment's method, at cost of vitiating the enterprise’s purported ethical significance.

The Hearing Department’s response to my motions posed a test, in which the prosecutrix screamed that my motions were frivolous, but the court never agreed. Although the Hearing Department was a court, it wasn't much of one. When the Hearing Department offered reasoning in support of decisions, the reasoning failed to take account of any of my arguments except as it misconstrued them. Yet the Hearing Department declined to hold my arguments frivolous and on two occasions granted my motions in substance.

Someone was watching the Hearing Department, but who? Only two possibilities lay in the Hearing Department’s chain of command: the State Bar Court Review Department and the California Supreme Court. The court building's architecture augured that the only honest review would come from the Supreme Court and portended that the Review Department functioned as much a part of an integrated State Bar as the Office of the Chief Trial Counsel and the Hearing Department, but the laws of group dynamics gave some hope that the Review Department and Hearing Department might split. The Review Department’s participation in the conspiracy, its joining the Hearing Department in kowtowing to the Chief Trial Counsel, was proven only when the Review Department's clerk conspired with the prosecutrix to falsify my petition to the Review Department, followed by the Review Department's issuing its denial on the merits, these events timed to occur on the eve of the Hearing Department's OSC. The conspiring Review Department clerk had previously refused to file the papers and announced she had destroyed them.

With the Hearing Department’s entry of my default, I have two options: 1) petition the Review Department to overturn the entry of default and failing that petition the California Supreme Court for review of the Review Department's decision; or 2) wait until the Bar Court enters its final judgment and then petition the Supreme Court for review. I can go immediately to the Review Department and from there to the Supreme Court; or I can go directly to the Supreme Court but only after waiting for the final judgment from the State Bar Court. Cases are rare in which a respondent goes directly to the California Supreme Court, skipping the Review Department. Nobody wants to wait for the announcement that the Bar Court proposes disbarment before challenging the decision.

My anti-waiver strategy compels waiting. Waiting for final judgment carries another advantage when a respondent challenges the notice of disciplinary charges, in opening up an additional basis for appeal, one still more compelling because the entry of default has draconian consequences that turn against the State Bar when it botches the notice of disciplinary charges. When the court orders entry of default, it deems admitted all facts alleged in the notice of disciplinary charges. The protections compare unfavorably with civil defendants against whom the court clerk has entered default. Defaulting civil defendants don't forfeit the presumption of non-liability, and the plaintiff must still prove a case, often to more exacting standards. Legal conclusions are not deemed admitted, even in the State Bar Court. Since the notice alleges scant facts, any judgment will become attackable as based on deeming legal conclusions admitted. The ambiguities in the NDC that made it unanswerable for me are at least equally unresolvable by the State Bar Court.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

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.