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.