Interlude 24. What would poor, helpless Westlaw and Lexis do without the Utah State Bar's solicitude?

Some law firms require that student law clerks misappropriate their academic Westlaw and Lexis accounts for business use, and the Utah State Bar has issued an opinion condemning this theft as violating professional ethics. (HT: Legal Skills Prof Blog.) But such misappropriation isn’t new, and it isn’t confined to Utah. Why was any state-bar response to this scandalous practice so delayed? Why haven’t other state bars acted? Why has the Utah Bar issued only a warning? The Utah State Bar opinion answers: while the state bars are recognizing, only now, that these hirers commit disciplinable offenses, the state bar censures them for the wrong reasons. The Utah Bar’s reasoning showcases state-bar authoritarianism: fawning over the powerful, with only omissive contempt for the weak.

The criminal law on their side, Westlaw and Lexis can defend their commercial interests without the state bar’s help. The research services have acquiesced because they find advantage in the law firms’ unacknowledged use of student accounts—another way to offer a free trial. The Utah opinion is indifferent to the truly despicable. The students are offered clerking jobs, then subjected to a bait and switch. The firm asks for their time, then demands their souls. The state bars never wax indignant about deceitful acts and exploitative practices victimizing law clerks and associate attorneys.

kanBARoo Court. Interlude 2. Discussion is better than monologue

Discussion of State Bar Court in relation to general prosecutorial misconduct.

http://tinyurl.com/236bnx

Published here with permission:

(My original comments are prefaced by '>>.' jl's comments are prefaced by '>.' My response to jl's comments have no preface.)

>>On Dec 10, 2:52 am, Stephen wrote: I have posted before about my personal
>>State Bar discipline case. Bluntly put, I charged that the State Bar
>>showed its incompetence and its dishonesty in manipulating its already
>>flawed procedural rules. The question crossed my mind, how far is the Bar
>>willing to go? Will it do anything to win? I didn't doubt the Bar's will,
>>but I did doubt its power, since ultimately, the Bar Court is subject to
>>review by the California Supreme Court. On the other hand, given the
>>power to do whatever it needed to win, it did not occur to me that its
>>incompetence might get in the way, even of winning by some form of
>>cheating.

> Do you have an absolute right of review or merely a right to petition
> for a writ of certiorari?

The right to a review by the Review Department of the State Bar Court is absolute. The Review Department's decision is reviewable only by certiorari to the California Supreme Court The review for which I filed was thus of right.

The Review Department and the Hearing Department, however, are both part of an integrated State Bar Court. The intermeddling clerk was acting for the Review Department, but sits in the same office with the Hearing Department clerks, even possibly sharing work.

> I have seen appellate courts crawl up trees backwards to avoid cert,
> despite official transcripts and records glaring with reversible
> error.

>>One never knows everything in advance. The State Bar has resorted to a
>>trick far cruder than I imagined it prepared to try. And it might be so
>>incompetent as to get caught in the process. The State Bar has
>>inadvertently provided me with proof of its dishonesty. The State Bar
>>trial counsel did nothing less than doctor court files to cause a
>>responsive pleading I tried to file to be rejected on technical grounds.
>>By substituting papers and destroying papers, it caused the clerk to
>>claim that I had filed a document without a proof of service and had
>>filed 4 copies instead of five. For these alleged sins, it rejected the
>>filing and destroyed all the documents I had sent to the clerk, putting
>>me in default and potentially out of court. Although the penalties it
>>tries to impose through the clerk's office are unlawful, that is far from
>>the most shocking aspect, because I can prove that to get this result,
>>the Deputy Trial Counsel had to substitute her own document version for
>>the one I sent to the clerk. This moreover is EASY TO PROVE. It boils
>>down to this simple question: Can the Deputy Trial Counsel produce a copy
>>her copy of the proof of service? How do I know whether it is or isn't
>>her copy? Each copy I sent out, whether signed or not, was dated by hand
>>in ink. You, readers, have little reason to take my word for what I can
>>prove. But you can wonder, why would I make an accusation that can so
>>easily be _disproven_ if untrue. Although my blog receives ample hits, no
>>one has commented. This confuses me. Isn't it obviously a matter of
>>import if the State Bar, that is charged with rooting out unethical
>>conduct, resorts to conduct not only unethical but frankly criminal? How
>>can this not have a tremendously bad affect on the whole practice of law,
>>affecting everyone in the end? Comments of any kind help me tremendously
>>in figuring things out. Please consider commenting at my latest
>>installment, which contains the actual motion I filed opposing the entry
>>of default that the State Bar engineered. The latest installment is
>>located at:

>> http://kanbaroo.blogspot.com/2007/12/kanbaroo-court-installment-15-pr...
>>
>> srd

> It looks as though, if you have proof, your opponent should herself be
> brought up before the bar.

Thank you for pointing this out. Of course, I know the offense is an ethical infraction, but I had not thought of actually filing a complaint with the State Bar.

What had occurred to me is filing a police report. While I now write briefs in all areas of law, my direct legal experience is limited to civil matters -- primarily in business litigation, with focus on breach of contract, and in personal injury. I don't know about the effectiveness of a police report in this matter.

A police report matter arose in another context. The events leading to the Bar's inquisition comprised a fraud conducted from my office, involving persons unknown to me, with whom I had not formed an attorney-client relationship. The defrauded were Korean-speaking persons, and the defrauders were Korean-speaking staff, who conversed among themselves in their native language. The State Bar argues that I should have reported the fraud to the police. This seemed a futile act, because I was not the direct victim of the fraud, and I lacked the evidence, which was in the hands of unknown defrauded persons.

In the present Bar fraud, I have the proof of service that I mailed to the offending Deputy Trial Counsel, but the main evidence is the prospective failure of that attorney to produce her copy of that document, that is, to produce an unsigned but hand-dated proof of service. Someone must request that she produce the document and inspect its date to determine that it is a reproduction. Who will undertake this investigation and perform it with integrity? Can the Presiding Judge of the State Bar Court be counted on first to undertake the investigation and then to make an honest report? It would be fairly easy, with perhaps limited potential repercussions, for an investigator falsely to report finding an original in Deputy Trial Counsel's possession. To make that determination, the investigator has to run a finger over the date, making a judgment, although an easy one that clerks perform routinely.

The likelihood of proper investigation depends on whether Deputy Trial Counsel acted independently. Did the Presiding Judge covertly instruct her to intermeddle? My blog recounts evidence of ex parte communication between the two. I lean toward thinking that the judge was in on it. Perhaps his permission was more general, and he might not have countenanced counsel's method, but only because he is smarter than she is, not necessarily more ethical. The Bar Court in practice is a closely integrated institution.

> It reminds me of Shakespeare's remark in _Measure for Measure_ where
> the jury "passing on the prisoner's life, may in the sworn twelve have
> a thief or two guiltier than him they try."

The Bar Court's offense here is no doubt more serious than any of mine, even as alleged. My actual offense would properly sound in general negligence in civil court. If the fraud were shown the result of my negligent supervision, one could argue that staff's fraud is a reasonably foreseeable consequence. It is not properly a matter of legal malpractice, since I formed no attorney-client relationship with the persons defrauded. Any negligence would be a violation of my general duty to use reasonable care to prevent injury, a duty having nothing specifically to do with the practice of law.

> We have found in our state that the official bar has been an
> employment repository for the inept and for scoundrels. Because of
> media pressure and the influence of wealthy parents our bar snatched
> the license of DA Mike Nifong, but sat inert and did nothing in even
> more alarming cases where corrupt prosecutors committed felonies to
> obtain murder convictions. Alan Gell was almost executed because of
> affirmative corruption by two prosecutors who barely got their wrists
> slapped by the bar.
>
> Scott Brewer and Kenneth Honeycutt were prosecutors who committed
> felonies to win a death row conviction of Jonathan Hoffman. Hoffman
> was later exonerated when it was discovered that the prosecutors hid
> from the defense, judge, and jury the lavish gifts they had bestowed
> on prosecution witnesses.

> The bar never touched these two corrupt prosecutors. The NC State Bar
> waited until the statute of limitations ran, and now those two
> scoundrels are untouchable. One of them even became a district court
> judge, and other one is still practicing law.
>
> The older I got and the more I practiced law, the more I saw it was
> politics, not law, that ruled the courthouses. You could call it the
> law of the jungle. And the politics of the courthouses are the black
> arts of malice, party loyalties, and faction. That's likely what you
> have to deal with.

I find an interesting question in the extent to which State Bar-enforcement problems reflect general problems with prosecution, exacerbated by the Bar's lesser competence, or on the other hand, represent a driving force.

May I have your permission to publish this discussion to my blog? Often discussion is more clarifying than monologue.

KanBARoo Court. 15th Installment. PREDICT the Court's Ruling

TEXT of ACTUAL ARGUMENT FILED - Opposing Entry of Default

Stephen R. Diamond (State Bar No: 183617)Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
oshua Tree, California 92252
Telephone: (760) 366-7920
Facsimile: (866) 392-4866
In 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
1. Respondent substantially complied with the court's order to file a responsive pleading.
Ms. Lawrence pretends that respondent “failed” to file an answer to the NDC because he wants to prolong these proceedings. Lawrence not only makes this accusation but also states it as though it were an obvious truth. She has repeated this accusation so many times that it takes on the character of a big lie, seeming to warrant belief by virtue of its tenacity alone. What else could possibly drive a respondent to avoid responding to an NDC for 144 days besides enjoying disciplinary proceedings so much that he wants to prolong them?
The true explanation of respondent’s conduct need not invoke perverse or masochistic motives. Respondent resists answering the NDC because he thinks his objections to it are correct, and the operative NDC prejudices his case. He thinks proceeding based on so seriously flawed a pleading would do him irreparable injury and wants at least one court of review to consider his legal arguments. Respondent also believes that his objections have jurisprudential significance. Filing the NDC would moot any review, and the courts would never hear respondent’s general arguments.
Respondent has not “failed” to file a responsive pleading. He has not yet filed an answer to the NDC, but at each turn, he has responded by filing the logical next pleading. Respondent in most instances filed these documents promptly, and has a strong excuse for 2-day tardiness in attempting to file the latest responsive pleading, a petition for review. Since the court and opposing counsel received a service copy of that document, the court is aware that it represented a serious attempt at compliance with the court order that he file a responsive pleading.
Assuming for the moment, contrary to fact, that respondent’s inadvertence caused the clerk to reject respondent’s petition for review, the State Bar still has provided no grounds for a motion for default. When the State Bar filed the present motion, respondent’s petition was received but unfiled in the clerk’s office. At that point, respondent had not failed to do anything. Lawrence filed a motion for entry of default based on the possibility that respondent would default, where the Rules of Procedure require a defaulted respondent when counsel files the motion. (State Bar Rules Proc., rule 200(a)(2).) A motion that survives time limits by guessing the future cannot survive review for due process.
2. Deputy Trial Counsel Lawrence's severe misconduct has denied respondent a hearing before the Review Department.
A. Ms. Lawrence participated in the falsification of respondent’s documents received by the clerk to engineer their rejection for filing.
Even if the clerk’s rejection of respondent’s petition had really been caused by respondent’s inadvertence, such inadvertence would not justify taking a default. But respondent’s inadvertence did not cause the rejection. As shocking as it is, the rejection can be explained only by a fraud in which Deputy Trial Counsel Lawrence participated.
The clerk’s office rejected the filing for two reasons:
The proof of service lacked a signature; and
Four copies and an original were not included.
The astonishing fact is that neither of these reasons is true, and the details’ astonishingly distressing implication is that Deputy Trial Counsel Lawrence directed the clerk to falsify the record. Both my secretary and I checked the signatures and the copies. But respondent knows additional facts. Respondent sent out only a single unexecuted proof of service and mailed it to Ms. Lawrence. Respondent sent the opposing party an unsigned proof of service, as is his routine practice, according with law and logic better than the common practice of signing them all.
any lawyers, surprisingly, are unaware of this fine and ordinarily useless point of procedure, and I earlier surmised that Ms. Lawrence is among them. They think you need to sign all of the proofs, and finding hers unsigned, Ms. Lawrence must have immediately approached the clerk ex parte to obtain a filing rejection, Deputy Trial Counsel’s copy of the document plus proof of service in hand. The clerk then sent me the copy of the proof of service I sent Ms. Lawrence, representing it as the one attached to the court’s main document. She then promptly destroyed the documents. I know these facts are true, because the only unexecuted proof of service accompanying any of the items mailed was the one addressed to Ms. Lawrence.
B. The facts of this fraud are readily provable.
Fortunately, the document respondent sent Ms. Lawrence--hence the one the clerk returned him-contained the date, handwritten in ink. If these accusations are false, Ms. Lawrence can refute them by producing her unsigned copy of the proof of service. If her copy is not the one that the clerk returned, then she will have retained it as her file copy. Having committed this deceit, she will instead produce a duplicate copy of the document the clerk returned, on which the date entered will be tactilely distinguishable. Deputy Trial Counsel Lawrence has taken it upon herself to see to it that my case never reaches the Review Department.
3. Clerical hyper-technicalism violates decisional law.
Much of the litigation at the State Bar Court is informal, because designed to expedite the fast-paced processing of cases, serving to both protect the public and the attorney charged. Besides making fraud by a clerk particularly easy, the hyper-legalism of the State Bar’s proof of service rules stands in marked contrast and serves more to entrap respondents in errors than to expedite proceedings. The practice of disposing of all documents marred by minor error and requiring complete re-service collides with decisional law on the duties of the court clerk’s office. That law holds that the court should briefly retain documents having minor deficiencies. (See Rojas v. Cutsforth (2nd Dist. 1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].) No excuse can justify disposing of the documents when the respondent might reuse them. Respondents who have suffered major law office problems will often remain in strained financial circumstances and simply throwing away $20 of expense is not reasonable, where the Legislature intended to give respondents an opportunity to be heard.
My secretary subsequently asked the clerk if she checked the other copies for the proof of service. She said she had not, because she needed only to check the original. Since no document was marked original, she chose one arbitrarily and on that basis decided that the “original” did not contain a signed proof of service. The method is unreasonable, because a single signed proof of service, wherever found, proves service.
Distinguishing between State Bar routine practices and this clerk’s idiosyncrasies is unnecessary. Regardless of how she was inspired, what she and Ms. Lawrence did was unconscionable and indeed criminal. They have obstructed justice in the courts by trumping up a bogus basis to deny me a hearing by the Review Department.
4. Respondent seeks not delay but the earliest hearing of his motion to dismiss the NDC.
A. The State Bar caused the most serious delay.
Ms. Lawrence charges respondent with using delay tactics not simply to marginalize his arguments but to distract from her primary responsibility for delay. Ms. Lawrence’s large-scale time wasting occurred mainly through her filing an earlier motion to enter default. Respondent filed a motion to dismiss on September 4, and the Hearing Department noticed rejecting my immediately subsequent motion to reconsider on November 11. That is nine weeks for five weeks worth of judicial transactions. Ms. Lawrence wasted precious time because she filed an improper motion to enter default, refusing to recognize the egregiousness of her conduct and that no court could enter default on such facts as presented:
Respondent files the document;
Five days pass; and
Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.
B. Answering the loaded statements in the NDC would be prejudicial to respondent.
Respondent argued rigorously that the seriously flawed NDC does not state disciplinable charges. More attention now to the prejudicial consequences of proceeding on the NDC could help quell Ms. Lawrence’s baseless accusations concerning delaying tactics. The current NDC consists of a series of loaded statements, which assume the relevant predicates. To answer the NDC one would have to first unearth the suppressed predicates and then answer them, at the same time continually clarifying that one is not sidestepping the actual allegation. As Ms. Lawrence pointed out, the State Bar believes that respondent committed misappropriation, simply because the wrongdoers performed their deeds from his office, regardless of his knowledge, conduct, or precautionary measures. Were the State Bar confident of its theory, the Office of the Chief Trial Counsel could try the case immediately as a matter of law, because respondent admitted all the necessary facts under penalty of perjury in his original motion to dismiss the NDC: staff performed acts of theft from respondent’s office while there employed. In addition, respondent admitted potentially damaging facts gratuitously, conduct which should lead the court to question Ms. Lawrence’s accusations about dilatory conduct. How many dilatory respondents knowingly make gratuitous admissions under oath that give the State Bar its entire case, as conveyed by the State Bar’s handling attorney?
The NDC tries to cover all the bases. It vaguely alleges that respondent committed misappropriation “through” staff members to insinuate the State Bar’s theory of strict ethical liability, as described above. But the NDC does not read that way. It implies without actually stating that respondent ordered or ratified the larcenous conduct. Converted into questions, these allegations are such as could never be asked of a witness. Useful or undistorted information is not obtained by asking questions that assume the respondent’s guilt. The respondent simply cannot answer these questions. Nothing respondent could say could create a clear record.
C. Respondent will make any compromise to receive a hearing before the Review Department.
Every principle of fair play dictates that respondent should have his day before the Review Department. The rush to judgment without this element of due process can be justified on two grounds only: protection of the public and protection of respondent. The latter, respondent waives; if the court believes the public needs protection in the interim, respondent is prepared to make very great concessions in order to have his petition heard. The maximum protection the public could receive is respondent’s immediate involuntary enrollment as inactive. Respondent is prepared to accept this measure of immediate disbarment, if the court believes it necessary to protect the public, keeping in mind that respondent has not represented any client in the past two years and does not intend to do so. If necessary for public protection, respondent would stipulate to mandatory inactive enrollment in return for the State Bar’s relinquishing its resistance to hearing respondent’s petition for review and staying proceedings in the Hearing Department until the Review Department rules.
Respondent prays that the court:
- Approve a deadline for re-submission of the matter to the Review Department;
. Stay the case pending that review;
. Take measures necessary to prevent meddling with the court records by clerks and trial counsel; and
. Take interim measures it deems necessary to protect the public.
Dated: _________________________
By: Legal Research & Writing Service
Stephen R. DiamondDeclaration of Stephen R. Diamond Supporting Opposition to Motion to Enter Default
I, Stephen R. Diamond, declare based on personal knowledge that:
. I am a Member of the California State Bar, admitted to practice law before all the courts of the State of California.
2. I thoroughly inspected the documents immediately before they were mailed.
. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service mailed that contained an unexecuted proof of service.
8. I have not represented any clients in the past full year, except my wife in a common matter.
9. I do not intend to represent clients in the future.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
________________________________
Stephen R. Diamond, declarant
Declaration of Catherine R. Hoholik Supporting Opposition to Motion for Entry of Default
I, Catherine R. Hoholik, declare based on personal knowledge that:
1. I am secretary at Stephen R. Diamond’s Legal Research and Writing Service. I served and tried to file by mail the petition for review in this case.
2. I thoroughly inspected the documents before mailing them.
3. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service I mailed that contained an unexecuted proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
______________________________

Catherine R. Hoholik, declarant

END Document.

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