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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KanBARoo Court. 13th Installment. The State Bar Gets Nervous

Pulling another trick out of the California State Bar's dirty bag, the Office of Chief Trial Counsel files another motion to enter default, notwithstanding my pending petition for review. The court (or “Hearing Department”) deserves blame for this frivolous motion, because the court emboldens the prosecutrix by mixing messages in orders. Judge Honn twice granted the substance of my motion or denied a motion I opposed. In each, the court pretended that the Bar prevailed.

The first installment treated one instance, a hearing where the court denied the Bar's motion to enter default and permitted me to file a motion for reconsideration. While upbraiding me in harsh generalities, the court granted my opposition’s substance. Yet, listening to all the criticisms directed at respondent, the prosecutrix did not carry away a cautionary message from her failed first attempt to take a stealth default.

In the second instance, the Hearing Department granted delay of my deposition until it ruled on reconsideration. Yet, in ruling in my favor, the Hearing Department styled its order a denial of my motion to continue the deposition notice. Again, Judge Honn ruled in my favor on the matter before him, while clothing the order in terms celebrating Deputy Trial Counsel's victory.

The court does not obfuscate orders merely to feed the prosecutrix’s ego. It intends respondent forgo taking encouragement. This is important because, for want of legal judgment, the Bar cannot count on weathering a litigation storm. Consider the frankly pathetic whining of Deputy Trial Counsel Melanie J. Lawrence, in trying to support her frivolous new motion for entry of default:

Trial in this matter is scheduled to begin December 17, 2007.If the regular time for response to this Motion is allowed, the deadline for a written response will be the same date the beginning of trial is scheduled. As it is, the State Bar has been severely prejudiced in trial preparation by the fact that no response to the NDC has been filed.

Ms. Lawrence's problem is that her astoundingly bad legal judgment wasted a lot of the Bar's precious time. 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's nine weeks for two motions, judicial transactions that should require only five. The State Bar lost its month because Ms. Lawrence refused to waive her right to proof of service. Proof under the circumstances was a purely technical requirement and one that the State Bar had already waived by accepting my document for filing. No court, not even the State Bar Court, could enter default on these facts:

1. Respondent files the document;
2. Five days pass; and
3. Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.

The prosecutrix behaved outrageously, and I admit it surprised me. She filed the motion and then spent weeks of valuable time waiting for the result. Why? She just did not know her motion stood not a chance. She believed she would prevail.

The Bar intimidates lawyers to suppress serious litigation, at cost to its attorneys' basic legal experience. What passes for litigation is quibbling about the time span for a suspension. Incidental errors also testify to the Bar's impoverished capabilities. While the prosecutrix wants the Bar to shorten time for responding to her motion, her motion can take at most a couple of days off the response deadline. Had the State Bar served its motion for default by overnight mail, it would have gained four days without court intervention.

Attorneys conducting a disciplinary defense against any of the state bar associations need to develop a case that challenges the State Bar on fundamentals, whether procedural or on the merits. The State Bar proves unequipped to deal with such challenge.

Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.

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.

kanBARoo Court, 10th Installment. Law Practice or Law-Business

The State Bar's Notice of Disciplinary Charges intertwines without distinguishing two broad issues. The first is my administrative service contract's lawfulness. The second is my ethical responsibility for the fraud the service's staff perpetrated. The State Bar alleges that I am responsible for the fraud because it resulted from the arrangement's impropriety. The State Bar also alleges that I am strictly liable in ethics for the misdeeds of my staff. These Installments have considered strict liability in ethics and will focus on this important issue again, but legally, strict liability in ethics is a nonstarter for the State Bar.

I didn't anticipate staff fraud, yet I anticipated that my manner of contracting would collide with the State Bar. The relevant question: is an administrative services general contract unlawful? If the contract was lawful, charges that the contract facilitated the fraud do not state disciplinary charges, even if the contract increased those consequences' likelihood. I have the right to rely on my partners in contract following the law, provided I have taken reasonable care.

The Notice of Disciplinary Charges alleges that I formed a partnership contract for the practice of law with nonlawyers. Much of the NDC depends on this allegation. The NDC alleges that I contracted with persons defrauded by staff, "through staff." These defrauded persons were unknown to me, and I did not direct, approve or ratify the fraudulent staff practices. The theory that I operated "through staff" requires that staff function as my agent. General partners bear the requisite reciprocal agency relationship, although only in a civil context. I am not liable, even civilly, for the torts of my staff committed outside the scope of employment, but I would be civilly liable for the torts of my general partner undertaken in the name of the partnership.

The State Bar has ignored that my contract does not meet the statutory definition of a partnership. To state the best argument, where the State Bar itself supplied none, they might argue that the contract substantially satisfied the definition of a partnership agreement. A law governing law partnerships might hold only certain aspects of partnership strictly essential to the definition. Applying the criterion depends on distinguishing the primarily relevant partnership factors for the practice of law. The problem can also be approached from the opposite side. What disadvantages go with restricting the practice of law to forbid various quasipartnership agreements? To see the disadvantage of restriction is to see the case for narrowing the concept of partnership applied to law.

Traditional law practice, sanctioned by a broad antipartnership law, fills all three roles with lawyers: legal, administrative, and entrepreneurial. The condition restricts the small law firm more: in solo practice, one attorney must fill all three roles. How much legal talent is wasted where the lawyer lacks the other skills or aptitudes? How many incompetent lawyers do we suffer because, to get entrepreneurial talent, you often must sacrifice legal talent?

The conventional answer to this problem is that the legally talented, nonadministrative, non-entrepreneurial lawyer should become the employee or associate of a lawyer with the full panoply of skills. This is no solution; it means the best legal thinking is not in charge of cases' conduct. To get to the top, attorneys need a mix of the other talents, each in approximately equal proportion, leaving numerous low-legal attorneys in control of offices. The pseudosolution of hiring expertise leaves the actual control and ultimate responsibility for prosecuting and defending cases to some legally unable attorneys. My administrative services contract—delegating administrative and entrepreneurial responsibilities—created a service-delivery super-standard for a client community. The State Bar hates this kind of contract. In this, the State Bar freezes a status quo of 'law as business.'

Tight restriction of lawyers' quasipartnership agreements harms the profession in other ways. When a lawyer who actually controls an office must be a lawyer and a businessman, law becomes as much a business as a profession. The traits that inherently mark the businessman rather than the lawyer proliferate among the profession. Many of the disagreeable characteristics of lawyers owe to the personalities of businessmen. Businessmen want to be bosses — to boss other people around. The administrative side of the law office is the side where you order people about, hire them, and fire them. Often, power-hungry people aspire to this station.

The unity of law/administration/entrepreneurship, ensconced in a broadly interpreted anti-partnership law, inescapably picks a particular template for the lawyer personality. The profession should not foster this alien template, as essence or public appearance.

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kanBARoo Court, 7th Installment, My Defense in a Nutshell

The gravamen of my defense before the California State Bar Court is that conclusory notice of charges is insufficient to meet the pleading requirements of the State Bar Court's Rules of Procedure. (Rules Proc., rule 101(b)(2) & (3).)

My case's procedural form can conceal the core issue, right to notice, as a matter bearing on high policy, not only individual cases. If my experience is typical—and why should it not be, absent legal obstacles to deter the State Bar Court—then the modus operandi of the State Bar is to file the most general allegations, with no showing of how particular alleged infractions violate the rule or statute in question. The Office of the Chief Trial Counsel then launches a fishing expedition, where the respondent has protection inferior to that afforded in ordinary civil or criminal matters. This conduct defeats the purpose of initial pleadings and formal charges.

My case rests on two foundational premises, establishing pleading requirements in the California State Bar Court:

1. The California Supreme Court reprimanded the State Bar Court in a line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar of California (1990) 51 Cal.3d 609; Baker v. State Bar (1989) 49 Cal.3d 804 ; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968.). The Supreme Court offers commentary comical in its seeming futility. In each opinion, the Supreme Court inserts a frustrated remonstrance: "Once again we are constrained to call to the attention of the State Bar Court the importance of identifying with specificity both the rule or statutory provision that underlies each charge and the manner in which the conduct allegedly violated that rule or statutory provision. While petitioner here does not complain of any due process violation in lack of notice, this specificity is also essential to meaningful review of the recommendation of the State Bar Court."
2. The general rules of pleading that underlie the State Bar's Rules of Procedure are committed on principle to factual pleading.

The Supreme Court warned repeatedly that the State Bar provides insufficient notice when it fails to connect law and wrongful conduct. Yet, the theory has not been used by any previous respondent. The failure to apply the law after it has been set out points to the extremely low level of practice in State Bar Court defense. These installments discuss the causes.