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, 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.

• If a particular aspect interests you, and you want to hear more, do not hesitate to comment. No registration is required, and I will not censor comments.
• If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my (at least) thrice-weekly installments.
• If you like the legal theory, my writing, or want to know more about what services I provide for litigation and trial attorneys, see My Profile.

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.