91st Installment. Raw deal on new Cal. State Bar Court Rules of Procedure

Shortened time and attorneys’ fear of the State Bar limited public comment on the Rules of Procedure revisions to a critical handful, the State Bar having maintained, with only apparent persuasive success, that the new rules—in light of the rights afforded other occupations—are fair and proper for attorneys. But the new rules degrade attorneys’ procedural and even substantive rights, in desperate violation of California law, as the State Bar struggles to handle its fourteen-hundred-case backlog. The rules’ most important changes concern discovery rights, rules of evidence at trial, and bases for disbarment, each change disadvantaging State Bar respondents, not only compared to the old Rules of Procedure but also to the protections other professionals obtain in California, as well as to protections due attorneys in most other jurisdictions.

Illegality of the new Rules of Procedure.

The changes to the Rules of Procedure are illegal under California law. New rule 5.65 limits respondents’ discovery to admissible documentary evidence and to identifying information concerning persons knowledgeable about admissible evidence—without corresponding limitations applying to prosecutorial discovery, which can include respondent depositions. Thus, the Civil Discovery Act no longer governs attorney discipline, notwithstanding the California Supreme Court’s holding:

Since respondent acts herein as an instrument of the courts, its activities should be governed by those statutory principles which have been enacted as rules of procedure for all courts. By whatever name a disciplinary proceeding may be called, whether an action or special proceeding, it is in essence the initial stage of an action in court. It follows that the discovery act, in toto, is applicable thereto. (Brotsky v. State Bar of Cal. (1962) 57 Cal.2d 287, 301.)

The Civil Discovery Act authorizes discovery of nonprivileged information calculated to lead to admissible evidence, regardless of that information’s lack of direct relevance. (Cal. Code Civ. Proc., § 2017.010.)

While the old Rules of Procedure did not expressly authorize use of the Evidence Code (as they did the Civil Discovery Act), the Bar Court had accepted the California Evidence Code, and the same logic that applied the Discovery Act to the State Bar Court in Brotsky also prescribes the State Bar’s obedience to the Evidence Code. The new evidence provision, rule 5.104(C), admits any evidence customarily relied upon in serious matters, and rule 5.104(D) specifically admits hearsay evidence when it clarifies the implications of non-hearsay evidence.

The new default rule, rule 5.82(4), permits disbarment of any defaulting respondent, a truly desperate and draconian measure that imposes disbarment as the de facto punishment for default. The rule creates a new basis for disbarment, violating Business and Professions Code section 6078, which prohibits charges for nonstatutory causes. Rule 5.82(4) expedites the State Bar’s longstanding exploitation of alleged minor infractions as occasions for fishing expeditions, since the Office of the Chief Trial Counsel can now charge a Member with an offense warranting only an admonition yet impose disbarment if the respondent declines to cooperate with the investigation or submit to trial. Respondents' rights upon default have long been in a sorry state—all facts alleged in the Notice of Disciplinary Charges are deemed admitted, however nonexistent their basis—now, unspecified facts warranting disbarment are presumed.

Attorneys’ rights compared to other professions in California.

State Bar apologists have convinced some by arguing that the new rules equate with the protections other occupations receive under the Administrative Procedures Act (APA), but the argument ignores key facts about the APA. (Gov. Code, § 11340 et seq.) First, tethering to rights granted criminal defendants has narrowed the rights afforded under the APA. The Legislature passed the APA in 1945, before California established civil- and criminal-discovery procedures. California common law since expanded the rights under the APA in tandem with criminal procedure, but in 1990, the reactionary voter initiative Proposition 115 (styled the "Crime Victims Justice Reform Act") eliminated criminal defendants’ common-law rights by restricting their procedural rights to those provided by the U.S. Constitution. The California Supreme Court tempered the constitutional amendment, Article 1, section 28, and derivative changes to the Penal Code, but running scared in the aftermath of the 1986 recall of Chief Justice Bird and other liberal justices, the court ratified the initiative’s thrust: to interpret California criminal-defendants’ rights no more expansively than the U.S. Supreme Court interprets the U.S. Constitution’s Bill of Rights. The curtailment of independent state grounds extended even to allow the use of hearsay evidence in preliminary criminal hearings, where prosecutors establish probable cause. (This despite preservation of the California Constitution’s Article I, section 24: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”)

The second fact ignored by the State Bar’s propaganda for reducing attorney rights to the APA level is that other statutes supplement the APA as it applies to various occupations—rendering comparison between the Rules of Procedure and the bare APA inapposite. The chart below compares the new Rules of Procedure governing attorneys, the bare APA, and its application to other professions.

(Click to expand)

Most noteworthy is the protection of teachers threatened with discharge or suspension from government employment. California statutes provide teachers, as they did attorneys under the old Rules of Procedure, with the discovery rights of civil litigants under the Discovery Act. As additional protection, an accused teacher is tried by a three-person panel that includes an adjudicator chosen by the respondent. Also included in the teachers’ panel, as in hearings under the APA generally, is an administrative-law judge from the Office of Administrative Hearings in the Department of General Services. (Gov. Code, § 11370.1.). Teachers need heightened protection comparable to attorneys because like attorneys, who may suffer retaliation when they represent unpopular or powerless clients, teachers may suffer it for what they teach. (Recall the Scopes trial.)

Doctors receive some heightened protection in their right to depose opponent expert witnesses, denied attorneys except by specific motion. Doctors don’t get the broad discovery rights contained in the Civil Discovery Act, but the results of applying most of the APA to the medical profession aren’t encouraging, even though doctors lack the special retaliation-related concerns of the inherently politicized professions, law and education. Medical delicensing hearings are notorious for their use by hospitals to axe unpopular physicians, whom administrators may resent precisely for their concern with quality care.

Even the rights of California attorneys compared to occupations governed by the bare APA are wanting. The APA provides for trial by an administrative-law judge, who is apt to be more impartial than a judge attached to the State Bar Court by serving in its Hearing or Review Departments. The impartiality of the hearing officer is, after all, the most important consideration in obtaining just outcomes. (Ward v. Village of Monroeville (1972) 409 U.S. 57, 59–60.) The unique right retained by California attorneys, to move for additional discovery, may actually benefit the prosecution because such motions must establish strict relevance—as perceived by the Hearing Department judge.

California attorneys’ rights compared to attorneys in other jurisdictions.

While the State Bar exaggerates attorney rights compared to California professions under the APA, it avoids comparison with attorney-discipline procedures in other jurisdictions. Fortunately, the New York State Bar Professional Discipline Committee recently (June 2009) studied the comparative issues. The New York report, among its other comparisons, examined how the U.S. jurisdictions compared on discovery and evidentiary rules. 

Regarding discovery, the New York study divided U.S. jurisdictions into three groups, finding that 8 states allowed almost no respondents’ discovery, 6 allowed some, and 35 allowed all or almost all discovery available to civil litigants. California now falls behind 70% of jurisdictions with regard to the discovery afforded attorneys in discipline cases. With regard to rules of evidence, 70% of jurisdictions (not the identical 70% allowing full discovery) apply nearly the same rules as in civil trials.

The California Bar has fallen behind the great majority of jurisdictions in respondent rights.

kanBARoo Court. 17B Installment. Opposition to first motion for default.

I'm going to roll out all of my major pleadings, as they call them in State Bar Court. The important question to a lawyer should be, what got the case to this point? What broke the State Bar? The 18th Installment, which will begin analyzing the question, will conclude that these documents pushed the Bar past its competence. This document is my first opposition to entry of default. You may recall that the court denied both the bar-counsel's first motion and its second one.

____________________
Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, CA 92252
Telephone: (760) 366-1925Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles

In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
Case Nos. 05-0-04605 et al.

Opposition to Motion for Entry of Default; Objections to Evidence; Memorandum of Points and Authorities; Declaration of Stephen R. Diamond
Hon: Judge Honn

:

Objections to Evidence

This respondent objects to the following evidence offered by the State Bar. In each instance Ms. Lawrence fails to supply the court or this respondent with the factual foundation for her evidence:
1. In paragraph 4 of her declaration, Ms. Lawrence states the court rejected respondent’s Motion to Reconsider for filing. This conclusory claim lacks any factual foundation. Ms. Lawrence does not submit documents or ask for judicial notice of this purported rejection for filing. She fails even to state how she knows the court rejected this document for filing.
2. In paragraph 6 of her declaration, Ms. Lawrence states “Respondent stated, among other things, that a proof of service is a “mere technicality.’” Ms. Lawrence fails to submit to the court any context for the phrase she quoted, and the evidence respondent has attached to this motion does not support her attribution. Respondent’s comment about hypertechnicality did not pertain to proof of service as such but to the circumstance that Ms. Lawrence admitted actual receipt of the document. If the court had not so apprehended, Ms. Lawrence could have corrected the court’s misapprehension, as Ms. Lawrence’s duty of candor required.

Memorandum of Points and Authorities

Procedural Background

The State Bar claims the State Bar Court rejected respondent’s motion for reconsideration. It is undisputed that respondent presented copies to the clerks on the fifth and fourth floors, with instructions to deliver those documents to Judge Honn and Ms. Lawrence. It is also undisputed that this respondent has not received notice of rejection from the court. Ms. Lawrence had not referenced any document providing such notice, whether to respondent or to her. The attached Declaration of Stephen R. Diamond supports the following account of the events.
On September 4, 2007, respondent and Ms. Lawrence attended a status conference in Judge Honn’s court. At this status conference, respondent stated he had faxed an unsigned copy of the motion to Ms. Lawrence. Because respondent had a document reproduction problem, the court kindly provided respondent until September 7, 2007 to file and serve the signed papers. Respondent informed the court that he had faxed Ms. Lawrence a copy of the pleading, lacking only a signature, which respondent would supply that same day.
Notwithstanding the extension, respondent succeeded in filing the papers at the fifth floor filing window before the original deadline, September 4, 2007. The filing clerk accepted the papers with respondent’s instructions to deliver the two signed copies to Judge Honn. The clerk in attendance at the fifth floor filing window stamped respondent’s extra copy “Received.” (See Ex. ‘A.’) Before depositing in similar manner the documents with the Clerk of the Bar Court, respondent had served Ms. Lawrence through a fourth floor Clerk.
On September 10, 2007, Ms. Lawrence faxed respondent to assert respondent was in default. A correct copy of the letter is attached as Exhibit 'B.' After further exchange of correspondence (see Exhibits ‘C’ through ‘F’), the State Bar through Lawrence filed a motion for entry of default on September 14, 2007.

Argument

1. The Clerk accepted respondent’s motion for filing on September 4, and the court lacked jurisdiction to reject the same document on September 10.

A. The State Bar Court’s Rules of Practice, rule 1112(b), requires that the State Bar Court consider the motion on its merits once the Clerk has filed it.
Rule 1112 establishes a two-stage system to refuse relief requested by written motion. In the first stage, rule 1112(a) directs the Clerk to reject pleadings with certain defects in proof of service, in signature, or in captioning. In the second stage, rule 1112(b) permits the judge to deny the motion or strike the pleading. Rejection by the clerk and denial/striking by the court are two distinct outcomes, each governed by different rules. To reject the motion for filing, the clerk refuses to accept the motion or returns the documents the same day. After suffering such a rejected motion, respondent may attempt to refile a corrected pleading and proof of service, accompanied if necessary by a motion for late filing. (Rule 1112(c).) Where the court had denied the motion, on the other hand, the court must provide notice of the denial. (Rule 102(a).) Following service of such notice, when it pertains as here to a Motion to Dismiss the Notice of Disciplinary Charges or its sequels, a respondent has ten days to file a responsive pleading. (Rule 1112(c).)
Here, the Clerk accepted the motion for filing. (See Ex. A.”) The court then was required to rule on the motion, possibly denying it, if the court deemed the procedural objections serious enough to so warrant. The court could not have rejected the motion for filing, as the State Bar claims. Respondent had already filed the motion with the court Clerk.
B. A stamp-endorsed pleading, such as respondent’s Exhibit ‘A,’ is a filed pleading.
“[A] paper is deemed filed when it is deposited with the clerk with directions to file the paper. [Citation.] (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777.) Respondent here instructed the fifth floor filing Clerk to deliver the document to Judge Honn. The Clerk agreed and conformed respondent’s copy of the pleading.
In the State Bar Court as in all courts in California, a conformed copy proves filing. In Datig v. Dove Books (1999) 73 Cal.App.4th 964, the court explained how a party might use a conformed copy of a pleading as proof:

The only ground for defendants' ex parte application was that plaintiff had failed to file her amended complaint within the 20 days allowed. It would have been a simple and relatively inexpensive matter to oppose the application or the motion by simply presenting a conformed copy of the timely-filed SAC. (Datig v. Dove Books Inc., supra, 73 Cal.App.4th at pp. 978-979.)

A filing mark is not necessary to prove filing, but it is sufficient. (Dillon v. Superior Court (1914) 24 Cal.App. 760 [“Had the bond gone up with the papers in the case without any filing mark the fact that it was presented to the justice with a request to file it could have been shown in the superior court and would have been sufficient.”].)
2. Even assuming that the Bar Court both had jurisdiction to reject the document for filing after its acceptance by the Clerk, this respondent had no notice of the rejection before the State Bar announced it would move for default.
Respondent received no proper notice of any rejection. The court provided no notice. Ms. Lawrence failed to provide notice before filing her motion for entry of default.
A. Had the State Bar Court through Judge Honn struck the pleading, it would and should have given respondent notice in writing.
Respondent is entitled to court notice of rejection, because such rejection substantially affects respondent’s rights. Rojas v. Cutsforth, supra, 67 Cal.App.4th 77 shows what the law requires when the pleading is struck based on an insubstantial defect, in Rojas, failure to sign. Similar considerations apply any minor defect, such as failure to provide a proof of service.
Where, as here, the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity. (See Code Civ. Proc., § 128.7, subd. (a), providing in part that "An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.") That should create no more difficulty than returning all the documents with a notice pointing out the defects. To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration. (Rojas v. Cutsforth, supra, at p. 777.)
Moving for entry of default for failing to file proof of service when the moving party received the pleading before the deadline makes no less a mockery of judicial administration in the State Bar Court than in civil court.
B. Even assuming opposing counsel, as opposed to the court, could properly supply notice of the court’s striking of a pleading, opposing counsel never provided such notice.
In her first letter’s first paragraph, Ms. Lawrence purports to provide notice of the supposedly rejected pleading:

I do not see that you filed an answer to the Notice of Disciplinary Charges or a Motion to Reconsider the Court's order denying your Motion Dismiss by September 7, 2007, as the Court ordered you to do. Apparently you, or someone on your behalf, left a Motion to Reconsider on the 4th Floor of the State Bar Offices on September 4, 2007, but it did not include a Proof of Service If you tried to file it without one, the Court would reject it. Further, it is not "filed" with the State Bar Court when you drop it off on the 4th floor.

(Ex. ‘B.’)
Ms. Lawrence does not here state, as she later claims, that the court rejected the pleading for filing. Ms. Lawrence could not have known whether the court rejected the motion for filing, since she lacks knowledge of respondent’s depositing the document with the State Bar Court on the fifth floor. Respondent has no idea of what Ms. Lawrence means when she states “I do not see ...” What is she observing, such that she might expect to “see” evidence of having filed the document? Why is she telling respondent of a rejection and threatening a motion to enter default, when she has no affirmative evidence that the court rejected the respondent’s motion? Ms. Lawrence continued to refuse to clarify the source of her information when respondent pointedly inquired in the ensuing correspondence. (See Exs. ‘B,’ ‘C,’ and ‘D.’) She concluded the court rejected the pleading based on the fact that she received no proof of service, combined with her belief that the court would not accept a motion without an attached proof of service. Learning from respondent that the Clerk had filed the pleading failed to dissuade Ms. Lawrence.
In her declaration under penalty of perjury, Ms. Lawrence reports that she mailed and faxed respondent the letter containing the above quoted first paragraph, here attached as Exhibit ‘B.’ In that declaration, Ms. Lawrence summarizes what she conveyed to this respondent: “In the letter I told Respondent that he had not included a Proof of Service and so, he had not properly served and filed any responsive document by September 7, 2007, as the Court had ordered.” (Declaration of Melanie J. Lawrence, paragraph 5, 5:19 – 21.) Yet she goes further in her declaration than in any correspondence with respondent, making her first definite statement that the court had rejected the document for filing. This contrasts with her correspondence, where she reasons that the court must have rejected the filing. States Ms. Lawrence at her declaration’s paragraph 4, “On September 10, 2007, I called 562-221-6873, the telephone number listed on the Motion to Reconsider that the Court rejected for filing on September 10, 2007.” (Declaration of Melanie J. Lawrence, 5:12 -13.) But Ms. Lawrence nowhere explains when or how she moved from her inference in correspondence that the court must have rejected the pleading, to definite knowledge that the court rejected the pleading, as she stated in paragraph 5 of her declaration. This conclusion, however inferred, remains inadequate as evidence. Ms. Lawrence lays no foundation for knowing the court rejected the document, and she provides no explanation for why she did not state her definite knowledge of the court’s rejection for filing in her correspondence with respondent, here attached as Exhibits ‘B’ ‘C,’ ‘D,’ ‘E,’ and ‘F.’
Whether the clerk or court has rejected, struck, or denied a motion is not for opposing counsel to say. Until she filed her motion on September 14, Ms. Lawrence nowhere stated that the court had rejected the document for filing. She only stated she believed that the court must have rejected the document. Such speculation is not notice.
The attitude taken by the State Bar is identical to the "paltry nitpicking” that the Rojas court condemned, although lacking the jurisdiction of the clerks admonished in that case. Said the Rojas court: “It is difficult enough to practice law without having the clerk's office as an adversary. Here, paltry nit-picking took the place of common sense and fairness.” (Rojas v. Cutsforth, supra, 67 Cal.App.4th at p. 777.) Lacking the authority to give original notice of failure to file a pleading properly, yet pretending to such authority and expressing the pretense in a draconic motion is not, as in Rojas v. Cutsforth, “paltry.” Such conduct should be characterized as malicious.
3. The State Bar’s motion to dismiss is frivolous, malicious, and outrageous.
The State Bar's motion for dismissal is both outrageous and frivolous. The State Bar moves for disbarment without even providing previous notice of respondent’s alleged failure to provide a proof of service, while Ms. Lawrence admits she received actual notice—she got the signed document on September 4. Respondent must assume the opposing counsel was untruthful in reporting the court's rejection. As respondent pointed out in correspondence, the court would have provided notice to respondent of any rejection. (See Ex. ‘C.’) To move for a default on so flimsy a basis, to provide a mere façade of notice, is serious enough. To misunderstand the actions of the court so fundamentally is at best the reckless disregard for respondent's rights. To fabricate a rejection, in vain hope respondent will fail to respond, smacks of fraud on the court and constitutes misconduct of such dimension as to reveal moral turpitude.
The State Bar desperately wanted to get rid of this case from its inception. This respondent's first contact with State Bar Enforcement, when the investigation had barely started, involved an investigator attempting to pressure respondent to resign. With this case’s deep legal defects, State Bar Enforcement knew it could not win on the merits. So important was disposing of the case by any means that it justified extortion, as when the investigator promised that the District Attorney would receive the case records only if respondent’s refusal to resign compelled continued investigation. The State Bar appears to believe that when charges are serious enough, they are true; then, the end justifies the means.

Conclusion

If the State Bar routinely uses its power to move for dismissal under Rule 200 in so coercive a fashion, this practice will effectively deprive respondents of due process. Whatever the merits of their positions, respondents will not risk the potential immediate result of noncompliance, disenrollment. This no-contest atmosphere must stymy the development of State Bar law. The court should not allow Bar Counsel to exploit rule 200 and its draconian penalties frivolously or maliciously. Chilling the right to vigorously defend a State Bar case necessarily ensues. Because of the unethical tactics employed by State Bar Enforcement, the court should supervise this case with greater than usual attentiveness.
Dated:


By:
Legal Research & Writing Service
Stephen R. Diamond
Declaration of Stephen R. Diamond
I, Stephen R. Diamond, declare:
1. The statements in this declaration are made from personal knowledge. If called upon to testify to them at trial, I would do so competently.
2. I am an attorney admitted to practice law in all California courts. I am the Respondent in this proceeding.
3. Exhibit ‘A’ is a true and correct copy of the conformance page, as stamp-endorsed by the Clerk of the State Bar Court.
4. Exhibit ‘B’ is a true copy of Ms. Lawrence’s fax to this respondent on September 10, 2007.
5. Exhibit ‘C’ is a true copy of respondent’s response to this fax in the afternoon of September10, 2007.
6. Exhibit ‘D’ is a true copy of respondent’s second fax, sent in the evening of September 10, 2007, mainly to correct an error in the previous facsimile about the location of the State Bar Court’s clerk.
7. Exhibit ‘E’ is a true copy of Ms. Lawrence’s fax to respondent on September 11, 2007.
8. Exhibit ‘F’ is a true copy of respondent’s response to this fax, transmitted on September 11, 2007.
9. On September 4, 2007, respondent and Ms. Lawrence both attended a status conference in Judge Honn’s court, where respondent stated he had faxed an unsigned copy of the motion to Ms. Lawrence. Because respondent had a document reproduction problem, the court kindly provided respondent until September 7, 2007 to file and serve signed papers. In open court, Ms. Lawrence agreed to lend the copy respondent had faxed her so that respondent could make a timely filing despite his lack of a printer.
10. Despite this agreement, Ms. Lawrence declined to allow respondent to borrow this document after the hearing.
11. Notwithstanding the problems and the extension, respondent succeeded in filing papers on September 4, 2007 that the fifth floor clerk accepted, after respondent instructed the clerk to deliver the two signed copies to Judge Honn. The State Bar Court Clerk on the fifth floor of the State Bar Building stamped respondent’s extra copy “Received.” (See Ex. ‘A.’)
12. Before the clerk on the fifth floor accepted the Motion to Reconsider in duplicate for filing and agreed to deliver the documents to Judge Honn, respondent visited the fourth floor, where he instructed a clerk who identified herself as authorized to accept documents for Ms. Lawrence to deliver to her a document identical to those filed on the fifth.
13. Respondent had been unaware of the absence of the proof of service until informed of this by Ms. Lawrence on September 10, 2007. Although the State Bar Court clerk examined the documents for the presence of an original signature and correct caption matter, he did not appear to look for a proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing true and correct.
Executed in San Bernardino County, California 92252 on September 27, 2007.
__________________________________
Stephen R. Diamond, declarant