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, 11th Installment, What's Wrong with Fishing Expeditions?

A fictitious deposition segment of a State Bar respondent ('K'), by Deputy Trial Counsel ('J'):

J: You claim to have complied with the Rules of Professional Conduct, yet you have repeatedly lied before the courts of California.

K: Untrue.

J: Please look at this declaration. Is that your signature?

K: Yes it is.

J: You signed this declaration under penalty of perjury. Is that correct?

K: Yes it is.

J: Is everything you affirmed under penalty of perjury as true, actually true?

K: Yes, I don't execute declarations unless I know that the propositions I declare are true.

J: Was it true, then, that you required more than 35 special interrogatories in this simple breach of contract case.

K: Yes, in my judgment, I required more than 35 special interrogatories to properly discover the facts of the case.

J: But you took defendant's deposition. Could you not have asked those additional questions in the oral deposition?

K: I could have. But in my judgment, I needed to pin the defendant down before the deposition.
J: Based on your judgment that you needed to pin down the defendant, you declared under penalty of perjury that the questions were necessary. You justified an exception to the 35-question rule, an exception that must be based on actual need, on your value judgment that it would be helpful to ask for the answers in writing first?

K: Necessity is not subject to a bright line test. My standard for necessity did not diverge from the norm in the professional community.

J: Well, I don't think you are going to be the judge of that. But let's move on to another question regarding the truthfulness of this declaration. Are you aware that the Code of Civil Procedure states that signing any legal paper verifies under penalty of perjury that the document was printed on recycled paper?

K: Yes I am aware of the rule. I am also aware that few attorneys believe that the provision you reference was seriously meant for enforcement.

J: Spare us your self-serving opinions about what other attorneys do. This case is not about them. We took this paper to a chemical laboratory and established that it was not recycled stock. Do you admit it was not unrecycled paper?

K: I don't know what kind of paper it was. Whether the paper I printed the document on was recycled or otherwise is not something I or most attorneys worry about.

J: Whatever your excuses, you admit that you signed the document, thereby verifying under penalty of perjury that the paper was recycled. At best, you had no knowledge about whether it was or was not recycled. Do you think that satisfies the definition of perjury?

K: I'm not here to debate the law with you, but I do not think that perjury can be established constitutionally by statutory imputation of meaning. Perjury is determined from the facts and the four corners of the document.

J: Your legal opinions are of no concern to me. Regardless of whether you can be convicted of perjury, you signed a statement implying you knew the paper was recycled. Whether a criminal act of perjury or not, by signing falsely, you committed an act of moral turpitude, mandating your disbarment.

In this story, Deputy Trial Counsel J's fishing expedition paid off. Fishing expeditions in general have fallen into unwarranted bad repute. In deposing a party in a civil lawsuit, counsel is not limited to inquiring about potential evidence. The information sought may be fashioned to lead to the discovery of admissible evidence, even if the inquiry is not about that evidence. But if the information is not relevant, that information will not be admissible at trial. Either it leads to admissible evidence or in the end it is worthless. Not so with testimony before the State Bar, where the notice of disciplinary charges can easily be amended to encompass any matter discovered.

Rules and laws span the gamut in degree of their intent to be construed in all earnestness. Much of what a lawyer learns during his vaunted experience consists of knowing how seriously to take various rules. The recycled paper rule is a nice example of a rule few take seriously. When an attorney is charged with moral turpitude, little machinery exists to enforce a distinction as to the seriousness of the law's intent. A fishing expedition can thus be a devastating instrument of inequity. The only way to stop it is to insist on a proper, factual, notice of disciplinary charges.