101st Installment. Cases as secrets: A reply to Professor Richard Zitrin

2^nd in the Horace Hunter series.

Hypothetical: Law professor Robert Nirtiz, a scholar and civil-liberties crusader, wins a key First Amendment case in the Supreme Court of the United States. His client prefers a low profile. Should Professor Nirtiz be precluded from discussing this case?

The case is part of our political culture, and prohibiting a civil-liberties’ proponent from discussing a favorable case abridges freedom of political speech, a more fundamental principle than the ethical commandment to keep client secrets. The same principle applies to all cases, including those of Horace Hunter’s clients even if they were offended by Hunter’s blogging. Professor Richard Zitrin disagrees. (Guard your clients’ secrets.) Against the Virginia Supreme Court’s holding in the Horace Hunter Matter that the First Amendment prohibits gag rules on court proceedings, Zitrin writes, “A lawyer remains at all times a lawyer.” The noninsular alternative was outlined by the four-justice dissent in Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1054:

At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law. [Citations.] We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.

Unfortunately, the reach of state-bar ideology extended to the Gentile court’s majority.

Characteristic of the state-bar establishment’s bureaucratic reflex (or insularity, as Zitrin prefers to call it) is its elevation of bar law over constitutional law, as when the Office of the Chief Trial Counsel cites the State Bar Review Department against the California Supreme Court. Although Zitrin has criticized the California State Bar for being insular, his disagreement with the Virginia Supreme Court’s refusal to discipline Horace Hunter for blogging about his clients’ cases indicates that even the most sophisticated official California ethicists are prone to insular perspectives.

Official California ethicists have never understood that legal ethics, like all law, must evolve as decisional law. (Lack of this recognition is also the reason California lawyers accept the inaccessibility of a bar law reported only through the insular-system’s journal.) Law blogging demands that the law develop because until recently lawyers haven’t had the means to publicize their cases.

But before the advent of blogging, situations existed—such as our hypothetical—where the free-speech rights of an attorney are superior to the attorney’s duty of loyalty to client. The situations involve political speech. Whereas the distinction between political and commercial speech is probably unnecessary to support Hunter’s right to blog without encumbering disclaimers, it comes into its own in distinguishing the kinds of client secrets an attorney must keep, and these secrets belong mainly to two categories: secrets useful for the attorney’s commercial advantage and secrets disclosed carelessly in the course of representation. Disciplining either kind of disclosures regulates commercial speech, whether the commercial locus is in different commerce or the same commerce. The advent of blogging forces a clearer recognition that the duty to keep client secrets stops short of limiting a lawyer’s political speech.

kanBARoo court places loyalty to client at the pinnacle of legal ethics, but the marginal breach of loyalty involved in public discussion of a case doesn’t justify transgressing attorney rights to free political speech—although the rules should strive to reconcile the two to the greatest possible extent. The speech in question is indeed  a form of political speech particularly salutary for law just because of its partly commercial character: it illustrates through actual cases how the attorney’s political aims and legal skills are aligned to further a client’s interest. This is a form of self-promotion that is likely to be a better indicator of attorney competence, courage, and conscientiousness than the standard credentials attorneys often brag up on their web sites. The damage done to the loyalty ethic (even without rule changes) is minor because this isn’t an area where the client has a strong claim for loyalty. Except by contract, clients have no right to secret cases.

kanBARoo Court. 46B Installment. "Bureaucratic Reflex" Defined

Of all the California Supreme Court State Bar cases, In re Nadrich (1988) 44 Cal.3d 271 gives the State Bar Court the high court's harshest and most on-point dressing down, defining "bureaucratic reflex" in passing. Beyond the gross defects in legal reasoning charged to the State Bar, the story reveals the State Bar's utter callousness. Nadrich's auto accident had inflicted perpetual severe pain, which to relieve, his physician prescribed Percodan, an opiate. The physician subsequently breached his medical duties by abandoning the patient, after cutting off the addictive pain reliever. Nadrich now had an addiction almost impossible to treat, the price, intolerable pain. Nadrich fell into despair and clinical depression, which forced him to close his law practice. To finance his Percodan habit and freedom from exceptional pain, at vastly inflated street prices, Nadrich accepted two offers to serve as intermediary in transactions to buy LSD.

The case could be a poster for bureaucratic reflex, although the court emphasized instead the Review Department’s refusal to consider mitigating circumstances. Despite the distorted focus, the Supreme Court describes the State Bar Court perceptively. The State Bar Court recommended disbarment for the:

sole stated reason [that]: "[Petitioner] was a professional dealer in illegal drugs for a substantial period of time and did not cease to be so until arrested. A lawyer who engages in such conduct should be disbarred." (In re Nadrich, supra, 44 Cal.3d at pp. 277-278.)

The Supreme Court denounced the State Bar Court’s reasoning in terms implying, from the first sentence, the Review Department was incompetent:

This statement betrays an oversimplified and unsupported view of the law. First, it suggests, incorrectly, that we discipline attorneys simply to punish them. [Citation.] (Cf. 37th Installment ["moralism"].) Second, it implies, also incorrectly, that we will not consider substantial mitigating circumstances in cases involving serious offenses. [Citation.] Third, it intimates, again incorrectly, that we apply rigid disciplinary standards, and that we analyze attorney discipline cases in the abstract instead of resolving each case on its own particular facts. (In re Nadrich, supra, 44 Cal.3d at p. 278 [emphasis added].)

The third—the one the case really is about—exactly defines "bureaucratic reflex."

kanBARoo Court. 30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty

Incompetent administration of law is oppressive in itself, as bureaucratic reflex replaces legal reasoning, but usually the oppression turns corrupt. In my case, the prosecutrix resorted to fraud on the court by pilfering documents submitted for filing. Thus, a second way incompetence breeds oppression occurs because of the inability of the incompetent to defend their acts honestly. A third way is that incompetence limits the reasons for eschewing oppressive or corrupt practices. It matters little whether one acts for good or bad reasons, if the results are wrong in either instance. A fourth way, their sole means to career advancement, the incompetent curry favor.

I started this blog, subtitled "How Legal Incompetence Engenders Oppression," because my case illustrated in pure form the most generic variant of legal oppression, bureaucratic reflex. Because of the case's direction, these Installments have digressed into the second route from incompetence to oppression, the prosecutrix's inability to win cases honestly, and, somewhat the third, in the court's indifference to the prosecutrix's misconduct. I have traveled the fourth, financially self-aggrandizing corruption, only briefly here. While there are pure cases of bureaucratic reflex—mine was at its inception—there are no pure cases of juridical corruption by currying favor for material reward because such corruption requires generalized incompetence, an environment unable to rebut error.

An all-sided view of incompetence and oppression must take account of scenarios where greed joins ineptitude in the engenderment. The Richard Fine disbarment is such a case. (See http://tinyurl.com/38ek9h) Attorney Richard I. Fine has practiced for some 40 years, gaining a reputation for successfully litigating citizen actions against government entities. His career trajectory eventually led to collision with the judicial system itself when he demanded the disqualification of judges in citizen litigation against the County of Los Angeles, based on the judges’ accepting payment from the County. Fine contends that the gratuitous payment of a $40,000 annual cash benefit by the County violated the California Constitution, which states that judges shall be paid by the State exclusively, and he contends the payments amount to a bribe. Fine repeatedly moved to disqualify judicial officers in actions against the County and eventually sued the judges personally, a procedure permitted for personal wrongdoing. At least one of the judicial officers filed a complaint with the State Bar, and the complaint resulted in the Hearing Department recommending disbarment. Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims happened, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done.

The State Bar Court doesn't ordinarily disbar without a showing of greed or dishonesty. Judge Honn needed allegations of moral turpitude, and such allegations the good judge did propound. Judge Honn accused Fine of making frivolous motions out of corrupt motive, the corrupt motive implying moral turpitude. Even if the court could justify discipline for good-faith motions the court considered frivolous, it remains hard to see what Fine's corrupt motive might be. Allegations of greed — the substance of true moral turpitude — are absent from the charges and Judge Honn's opinion. The moral turpitude may be invisible, but Judge Honn is not one deterred by implausibility. According to Judge Honn's opinion, the corrupt motive served by Fine's allegedly frivolous filings was to coerce the judges, and failing that, to wreak revenge!

Judge Honn does not clarify how he surmised Fine's motives. The State Bar Court recommended Fine's disbarment because he is a "legal bully," obviously the tenor of the offended judges' complaints. Some judges are so accustomed to lawyers cowering in their courtrooms that they might contrast any zeal as bullying, but, as to actual bullying, a barrage of frivolous motions is no way to bully a judge. And where is the revenge, when the judge wins, the petitioner is sanctioned, held in contempt, and serves, as did Fine, three days in jail? Corrupt motive in the Fine case is a senseless conclusion without evidence in the face of a far more plausible explanation of Fine's incessant motions. When the judges showed new biases, Fine had to file motions demanding disqualification or risk waiving the issue. Fine perceives a mass-conspiratorial fraud on the court, not an everyday legal situation. Whatever the merits of his position, this is not a State Bar matter.

In the next Installment, you can learn how the Fine Hearing Department failed even to establish the alleged facts on which it dwelled and relied.

kanBARoo Court. 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?

One event demolished the State Bar establishment’s effective reliance on disbarment as a mark of Cain, to anchor coercive power: the 5-year disbarment of a sitting U.S. President, when the Arkansas Supreme Court disciplined then-President Bill Clinton, after a majority of the U.S. Senate failed to convict, and not a single Democratic Senator voted for conviction. The outcomes implied that one may be ethically qualified for the United States Presidency, yet lack the morals to practice law in Arkansas, a conclusion that the cynical and the idealistic both must reject. Either the U.S. Senate or the State of Arkansas’s State Bar Court equivalent was out of touch with American morals, and it wasn’t the Senate. Clinton's approval rating soon rose to an unprecedented 73%.

Clinton was disbarred based on a federal district court's order citing Clinton for contempt in the Jennifer Flowers proceeding. The allegedly contumacious conduct consisted of false statements Clinton provided in deposition, violating the court's discovery order. The court focused on two false statements: that Clinton had never been alone with Monica Lewinsky and that he had never had sexual relations with her. The Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas professional practice rules 8.4(c) and 8.4(d), which make it professional misconduct for a lawyer to:

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice

For one living and litigating under the California Constitution, which declares privacy on par with life and liberty in its inalienability, requiring under the Federal Rules that a litigant inform on his sexual partners seems barbaric. Without a direct showing of relevance to the present lawsuit, a federal plaintiff can force exposure of the most personal information. While a court should assign some culpability for the generalized offense of lying in court, it should also consider the altered ethical context, depending on the personal decision the respondent actually faced. Bar Rules typically distinguish different grades of unethical conduct, and the Arkansas rules offer this discussion of moral turpitude:

Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

There are other relevant measures of ethical magnitude, however, such as between breach of basic moral rule (malum in se) and breach of administrative regulation (malum prohibitum). Both malum in se and malum prohibitum infractions have some ethical relevance, but only malum in se violations are usually taken to indicate turpitude, because malum prohibitum infractions reflect only the single trait of law abidingness. While the rule against lying in sworn proceedings is malum in se in form, the underlying obligation to allow routine discovery of one’s sexual partners is malum prohibitum. There is no moral inevitability today for judicial access to all information potentially relevant to civil litigation; no moral inevitability today to afford civil litigants easy intrusion into an opponent’s sexual relationships; no moral inevitability today about holding the threat of future judicial inquest over every unconventional private act a person performs. California privacy law proves the absence of such moral inevitability. Lying to protect personal information from an ethically dubious intrusion is malum in se, insofar as it involves lying, and malum prohibitum, insofar as it involves a failure to comply with the discovery order requiring disclosure. The Arkansas Supreme Court Bar arm didn't consider the ethical dimension in sufficient depth, because it responded with the bureaucratic reflex and moralistic rigidity typical of the State Bar establishment, using the single amorphous concept of moral turpitude to erase distinctions.

The ethical crudeness of the Clinton disbarment decision, however, was not its main failing. The Arkansas Supreme Court should have been subject to federal preemption. It exceeded its jurisdiction in disciplining a President for his conduct as a Federal office-holder. The states have no jurisdiction to control the exercise of Presidential power or of the President's performance of his duties.

The court might have agreed, as it created the impression of imposing the sanction for conduct it observed during the Flowers proceeding, involving personal rather than Presidential conduct. Clinton’s grand jury testimony during the Special Prosecutor’s investigation of his Presidential conduct impeached his Flowers testimony, said the court, but the same logic allows that the Flowers testimony impeached Clinton’s statements to the Starr grand jury. While the district court judge wrote that she directly observed the contumacious conduct, she was mistaken in her evidentiary characterization. She actually observed only a conflict between two testimonial acts. The judge observed or was entitled to take judicial notice of a conflict between Clinton's testimony in his Flowers deposition and his testimony before the Kenneth Starr grand jury, indicating that in one of the two instances of testimony, Clinton was lying, leaving the question a mixed State and federal law question, pre-empted by federal law. The Arkansas court was not entitled to disbar Clinton.

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.

kanBARoo Court, 6th Installment, The Benninghoff Miscarriage of Justice

The State Bar Establishment feeds rule by bureaucratic reflex and justification by cheap moralism. A section of the law professariat avidly supports this trend as affording license to display their moral superiority. These are natural allies of the State Bar Establishment. Astute observers know that those most aggressively publicizing their moral credentials likely are themselves psychopaths, particularly when they do it to others' detriment.

What to surmise when a law professor begins a blog entry with: "Don't be a sleazeball"? What to surmise when this professor's errors of fact are pointed out, the law professor considers the matter so unimportant that he deigns not even to correct the errors of fact. The State Bar as constituted is not the institution to do it, but outrageous libelous publication warrants discipline for moral turpitude. Certainly the demonstrated lack of concern for truth warrants the writer's removal as a law professor.

The blog entry belongs to one Professor Shaun Martin, and the entry appears at http://tinyurl.com/244lqw The case on which Martin comments is published at Benninghoff v Superior Court (2006) 136 Cal.App.4th 61. Professor Martin recites facts scarcely recognizable as belonging to the same case. Martin's most egregious errors are 1) he pretends that the court found that Benninghoff's representation before federal administrative law courts was unauthorized practice of law, when Benninghoff prevailed on this issue; and 2) Martin pretends that Benninghoff was found to have violated laws barring the unauthorized practice of law, whereas the Court of Appeal refused to rule on that question, finding instead that Benninghoff breached a special set of standards pertaining to the practice of law by former attorneys. The first lie is so false and so foul that I will abjure further discussion, lest the stench — to use one of Professor Martin's choice terms — prove infectious. The subject of this installment is the second misrepresentation of the facts and the court's opinion because it highlights the pitfalls in Bar Defense by even experienced and zealous advocates and points to the level of legal theorizing necessary to keep the State Bar from devouring the law.

Benninghoff's web site at http://www.administrativelaw.net/ shows that the Court of Appeal failed to mention substantial contrary law argued before it. This showing did not suffice to win a Supreme Court review. To prevail, Benninghoff needed to raise deeper issues of law. Had the court said that the law prohibits nonattorneys appearing at administrative hearings, the issue could be addressed at the familiar level of case law and judicial council opinions. The court did not address it at that level because the State Bar would not have prevailed on those considerations, precedent considered. The Court of Appeal opted to save part of the State Bar's case by distinguishing the duties of a resigned or disbarred attorney, on the one hand, and laymen who have never been attorneys, on the other. By making this distinction the Court of Appeal reached the decision it apparently wanted to reach, but it did so by crafting a rule absurd on its face and unconscionably arbitrary on analysis.

When you go up against the State Bar, you deal with a legally unsophisticated agency that will take any of your rights it can. That is the only way the California State Bar can function, as it lacks the legal aptitude and experience to litigate difficult questions of professional ethics. The workload facing the appellate courts these days is so heavy that you cannot expect the court to recognize the absurdity of the State Bar's position spontaneously. You must fight a battle directed against the oppressively arbitrary distinctions the State Bar will try to foist on your case, attacking them at their root, not at the most superficial legal level possible.

Superficial attack is usually the favored way to proceed. You don't raise questions of constitutional magnitude unless you absolutely have to. When you have a serious case before the State Bar, you have to. You must energetically break certain routines and habits of ordinary litigation, because you are encountering a force whose strength consists of its brazen willingness to draw arbitrary and oppressive distinctions and of its institutional connections, which gain acceptance for its travesties.

Think about what the State Bar is saying and what the Court of Appeal held. The State Legislature can impose special punishments on persons based on their occupational history. When you become a lawyer, you forfeit forever the rights everyone else has, even (and especially) if you cease being a lawyer. Having been a lawyer, according to the Court of Appeal, you can never again represent parties in a lay capacity, even where anyone else but a former lawyer has this right. This must strike any fair-minded person as oppressive and insane. What will the next law be: that any citizen can home school his children unless he has previously worked as a teacher?

Fortunately, there is a term for such legislation — or as here, construal of legislation. Standards are in place to preclude these arbitrary manipulations of the law, to prevent the courts or the legislature depriving citizens of rights unrelated to any punishment for any crime they have suffered conviction. As any fair-minded person's gut reaction will tell him, precluding this kind of law is a very basic kind of right. It is so basic that to reach it, you need to go to the original U.S. Constitution, beyond even the Bill of Rights. If the concepts are unfamiliar, it is because no one except the State Bar would propose a distinction so invidious and have the social weight to get approval by the Court of Appeal.

Benninghoff v. Superior Court construed Government Code section 6126, subdivision (b), in so crazy a manner that it turned it into a bill of attainder. The prohibition of bills of attainder serves the separation of powers, the prevention of legislative infringement on the judiciary's prerogatives to find guilt and to punish. "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply — trial by legislature." (U.S. v. Brown (1965) 381 U.S. 437, 440.) As James Madison explained ""Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation." (Federalist Number 44 (1788).)

The Legislature cannot pass laws specially punishing resigned or even disbarred attorneys without trial and remain within the U.S. Constitution. Punishment is for the judiciary, and any law construed as a bill of attainder must be invalidated. The Bar Establishment must be precluded from imposing punishment by attainder on lawyers and obfuscating the real issues with its strident moralism. To fight the Bar you must be able and willing to deal with the most fundamental issues.

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kanBARoo Court, 2nd Installment, Don't Fear the State Bar

The stigma of prosecution by the California State Bar and the fear of aggravating the State Bar advocates' irritability dams up almost any public exposure, whether pertaining to the State Bar Court's Hearing Department or its Office of the Chief Trial Counsel. Hungry for information that threatens any lawyer's livelihood, many attorneys scan the entire Discipline section of the Bar Journal, pretending a voyeuristic curiosity about the Members so subjected, where the real and legitimate interest lies in the basis for the discipline imposed. Nothing else in the Journal proves to merit their attention, and the discussion of discipline is no more inherently illuminating. What might cause an honest lawyer to fall afoul of the State Bar? This is the usually unspoken and futile question lawyers address to their reading of the Bar Journal. Whereas the process of prosecution will determine the level of due process, the Bar Journal acquaints lawyers with only the result.

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest. The State Bar's incompetence should not excuse any complacency by attorneys or the public, as this kind of incompetence does not preclude numerous convictions. This paradox of the State Bar is the riddle that opens the way to understanding why the California State Bar is so incompetent. The paradox is that, incompetence notwithstanding, the State Bar can threaten honest practitioners.

The State Bar's incompetence grows from the absence of real controversies, that is to say, a dearth of seriously contested cases. The State Bar Court, at least through its Hearing Department, functions to avoid real controversies, not to hear them. Consider how the source of our law is the British common law, as it has been fed through the resolution of controversy, as it has evolved to a sophistication where many fundamental precepts have required only the most minute modification over decades, even centuries. The State Bar Court, however, can prevent the statement of controversies with sufficient explicitness to resolve them as matters of legal principle. Its mechanics consist of fear. A wrong tactical guess and an attorney finds himself involuntarily enrolled as inactive. Such a threat does not generate the bold yet small-scale innovations that drive the development of law. And where the law fails to develop in small matters, it must degenerate in large ones.

Bar law, like all law, must continually develop or else degenerate into bureaucratic reflex, but the legal framework governing the State Bar artificially inflates the need for rapid development at the same time as it systematically stymies it. An arcane case law, unavailable through common research tools, largely governs the State Bar Court. A proper respect for legal tradition and a wholesome acceptance of properly informed controversy — where lawyer-respondents know the governing law — would mandate adopting the Code of Civil Procedure, except where specifically amended by Bar rules. The State Bar does this right only for discovery rules. Otherwise, State Bar Court's "Rules of Procedure" wholly supersedes the Code of Civil Procedure, the former's cases confined to The State Bar Court Reporter, except where the State Bar Court’s extensive yet vague and ambiguous rules occasionally state otherwise.

This series ultimately targets the State Bar's simultaneously self-serving and self-defeating rules, buffering the State Bar Court from real controversy. The atrophy of legal thinking, puerility of legal conceptualization, and ham-handedness of execution — in short, the incompetence of the California State Bar's Office of the Chief Trial Counsel — is the concern of these installments. The next installment returns to the story that illustrates and proves this verdict.

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kanBARoo Court, 1st Installment, The Outrageous State Bar

The California State Bar’s Office of the Chief Trial Counsel was awestruck and panic-stricken when it lost its motion for entry of default, in a direct test of its legal position against me, the pro se respondent in Case No. 05-R-04605, et. al.

I start the account in the middle, with the outrageous misconduct of the Office of the Chief Trial Counsel, through Deputy Trial Counsel Melanie J. Lawrence, Esq. The forum is the State Bar Court's Hearing Department, presided over by the Hon. Richard A. Honn. Today’s story is merely the beginning of the extensive coverage and analytic commentary I seek to provide regarding "In the Matter of Stephen R. Diamond, No. 183617, A Member of the State Bar," an action in which I am obviously an interested party.

What follows today is a small but revealing part of the story. If you thought the State Bar Court is simply a court like many others, think again.

1. I filed a motion to reconsider after the court denied my motion to dismiss the notice of Disciplinary Charges. That day, a Tuesday, I had brought my intent to move for reconsideration to the court's attention at an in-person status conference, where the court confirmed that this motion was a proper and timely responsive pleading.

2. I served a copy to the Deputy Trial Counsel. Then I delivered two copies to the filing clerk, to whose window other clerks had directed me. She took my motion to reconsider, inspected it carefully, and stamped my conformed copy “Received.”

3. Although I filed it Tuesday, the motion was not due until the following Monday. On that Monday, the Deputy Trial Attorney e-mailed me. In her words, "At this point you have failed to properly file any responsive document. So, I intend to ask the Court to enter your default."

4. The Deputy Trial Counsel lacked any awareness of the egregiousness of her misconduct. She admitted being served with the actual signed document Tuesday, waited till Monday to point out the oversight, and attempted to exploit it to take a default in a quasi-criminal proceeding, while refusing even to supply documentation.

5. In my opposition, I argued beyond a due process matter concerning notice, the obvious issue, but one fraught with procedural uncertainties. More fundamentally and effectively, I challenged the court's jurisdiction to reject a document for filing after the clerk had accepted it for filing. "The Clerk accepted respondent's motion for filing on September 4, and the court lacked jurisdiction to reject the same document on September 10." I stated of the motion to enter default, "The State Bar’s motion to for entry of default is frivolous, malicious, and outrageous."

6. The Hearing Department of the State Bar Court denied the Deputy Trial Counsel’s motion to enter default, as shocking as this outcome was to the Office of the Chief Trial Counsel. The State Bar Court’s stance during the hearing, however, showed enough bias to discredit it. The court ignored the misconduct of the Deputy Trial Counsel and focused its attention on my failure to recover some mail in my transit. The court declared that I now am "on a short leash." Courts have used the phrase "on a short leash” to mean maintaining tight management of a case. No neutral court would put such a general onus on a party to an action. The court did not acknowledge that the document’s acceptance by the clerk was dispositive of its status as filed and distinguished between “Received” and “Filed.” The court claimed that the whole court system made this distinction, a purported observation that the court thought sufficient justification. On its own initiative, the court effectively took judicial notice of this “fact,” without briefing on either its accuracy or relevance.

More than my case, I am concerned with general issues. The State Bar's method is to make outrageous charges without evidence and then seek evidence through undisciplined discovery. I intend to challenge its methods of work. I am convinced State Bar misconduct is standard. In future installments, I will tell more of this story, its background, and its unfolding. I can afford to be principled because I don't fear the State Bar, partly because my livelihood derives from contracting with lawyers to prepare legal briefs and devise legal theories.

This ongoing account contains the legal theory guiding my case before the State Bar.
 
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