Richard I. Fine, fighting on several fronts, continues to resist State Bar oppression. Fine recently presented oral argument before the State Bar Court Review Department, submitted disqualification motions against judges involved in his disbarment, and filed a civil rights suit in federal court for declaratory and injunctive relief. In the federal action, Fine seeks to have Business and Professions Code section 6007, subdivision (c)(4), declared unconstitutional. Fine contends this provision violates due-process notice requirements by allowing the State Bar Court to enroll Members involuntarily inactive, as corollary to a disbarment recommendation, without holding a special hearing evaluating the factors subdivision (c)(2) requires. Fine also challenges the "moral turpitude statute," Business and Professions Code section 6006, as unconstitutionally overbroad.
The Metropolitan News-Enterprise (June 25, 2008) covered Fine's oral argument. The reported remarks show both the Office of the Chief Trial Counsel's abysmal legal backwardness and the State Bar Court's unconstitutional over-reaching. The State Bar's counsel maintained that the Fine case did not pose First Amendment issues, because the case concerns acts done, not utterances stated. The comment of Review Judge Judith Epstein proves the wrongheadedness of the OCTC's perspective. Judge Epstein saw Fine's judicial communication of allegedly known falsehoods as the gravamen of the State Bar's charges. The relevant distinction drawn by Epstein has nothing to do with that between speech and action, as Bar counsel conceives, but whether the constitution protects the given speech.
Bar Trial Counsel also stated that the problem is that Fine sees no wrong in his actions, and, if allowed to practice law, he would repeat them. Even if sound, this argument fails to embrace the State Bar's ameliorative theory of discipline, as trial counsel does not consider the likelihood that imposing lesser discipline would change Fine's attitudes. (See Maltaman v. State Bar (1987) 43 Cal.3d 924, 958 ["Because petitioner has no prior record of discipline, we have no evidence that a sanction short of disbarment is inadequate to deter future misconduct and protect the public."].) Exposing the State Bar's self-serving disregard of the prospects for "reforming" respondent Fine is not to admit that Fine's attitudes need reform. The State Bar's grandiose belief in its own capacity to determine independently whether Fine performed his lawyerly duty of candor to the court does need reform. Fine reports that findings of contempt in two courts were invalidated. The State Bar didn't predicate its charges on contempt findings because judicial officers—unable to sustain contempt charges in courts of record —obtained a de facto contempt conviction by collaterally attacking Fine in the State Bar Court.
The argument that a guilt finding for contempt must undergird a constitutionally proper penalty for violating a court order applies to Fine's situation, because the logic applies not only to violating court orders but also to breaching any rule or statute tested by constitutional-court contempt proceedings. The 41st Installment argued that interpreting Business and Professions Code section 6103 to allow State-Bar attorney discipline for violating a court order, absent contempt, was incompatible with California's public policy, which lets litigants challenge court orders by violating them. The inconsistency between public policy and State Bar practice deprives attorneys and indirectly their clients of the law's equal protection. Proving contempt by judicial fact finding—not necessarily involving a court order—implicates the same principle, since non-attorney parties, unequally, have the right to a contempt trial, with its higher standard of proof than a State Bar proceeding.
Showing posts with label notice of disciplinary charges. Show all posts
Showing posts with label notice of disciplinary charges. Show all posts
Sunday, July 27, 2008
Thursday, January 24, 2008
kanBARoo Court. 26th Installment. Why is the NDC Unanswerable?
As argument for the upcoming California Supreme Court appeal, my earlier petition to the Review Department of the
This readiness to attach blame upon the Chief Trial Counsel’s issuing charges stems from the subject of the next Installment, legal ethics holding attorneys culpable for the mere appearance of impropriety. Consider the position of the Supreme Court, dedicated to this ethic and believing that the existing State Bar is better than nothing. When the Chief Trial Counsel's office can do no more than see smoke and presume fire, to require definite charges would keep this State Bar from opening a case. The Supreme Court prefers retaining this police function, even at privacy’s expense. Although undisciplined fishing expedition could find all attorneys commit rule violations, the point in itself is unprovable and legally almost irrelevant.
Avoiding undisciplined fishing expeditions primarily implicates the California Constitution's protection of privacy interests, a weaker interest than due process. The oppressive practice of requiring complete answers to ambiguous questions, on the other hand, directly violates due process. (See Commonwealth v. Lambert (2000) 765 A.2d 306 [“[w]hen an affirmative answer is exacted from a witness to a line of questioning loaded with assumptions favoring only the inquisitor, the leading question becomes not a tool of truth but of advocacy and intimidation”]) It is both strength and weakness of this case as a candidate for Supreme Court review that the most important violation of due process is unique to State Bar proceedings because of the expanded role of the initial pleadings, which also serve as interrogatories by requiring complete answers. Contrast the notice of disciplinary charges with the civil complaint and written interrogatories, another method of gathering civil-case information. A civil defendant must answer a verified complaint with specific agreement or denial but, unlike a respondent answering the notice of disciplinary charges:
- Need not provide a complete response or new facts; and
- Can demur to an ambiguous pleading, even if it states a cause of action.
A civil defendant confronted with an ambiguous interrogatory can:
- Object to the question; or
- Impose a reasonable restricted meaning and answer.
An example. The NDC’s paragraphs 19 and 21, count one reads:
Respondent willfully violated Rules of Professional conduct, rule 4-100(b)(1), by failing to notify a client promptly of the receipt of the client's funds, securities, or other properties, as follows . . . By not informing Yoo of the receipt of the medical payment from Infinity, or the Yoo settlement from Farmer's, Respondent failed to notify a client promptly of the receipt of the client's funds, securities, or other properties.
I could straightforwardly deny such an item appearing on a verified civil complaint. If one part of several is false, their conjunction is false, and no requirement of completeness intervenes. If such an item occurred embedded in a written interrogatory or request for admission under penalty of perjury, I could object to the question as ambiguous and refuse to answer. What do I say when answering the notice of disciplinary charges?
- I deny Yoo was my client, as Kim and his accomplices handled the case secretly, elaborately concealing their criminal acts.
- I deny any notice or constructive notice of the receipt of the funds.
- I lack sufficient knowledge to affirm or deny that Kim failed to inform Yoo of the receipt of funds.
At least those points should be noted to comply with the requirement of providing a complete factual response to the allegations. The ambiguities in the charge prevent me from providing a simple, unequivocal answer and, in that way, prevent me from clearly stating my position. Such questions are designed to muddy the respondent's position by requiring the respondent to make numerous artificial distinctions, which the State Bar can distort in presentation to a busy court. (See People v. Crenshaw (1966) 241 Cal.App.2d 289, 296 [unwisdom of defendants’ propensity to "give answers to 'loaded' questions which subsequently may be reported in such a manner that they may appear to constitute evidence of their guilt"])
As it requires complete answers under oath, the Supreme Court should mandate special demurrers. Fortunately, a respondent can often reach these defects based on their failure to state a disciplinable charge. The pleading requirements for stating disciplinable charges preclude the most patent ambiguities by requiring ultimate facts and explanations connecting infractions with rules or statutes. Since these allegations fail to state disciplinable charges, moving for dismissal is a respondent's only rational response.
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Notice of New Posting Schedule
To prepare for the Supreme Court, these Installments will become more analytical, hence more time-consuming to prepare. Consequently, I shall be posting Installments at least twice per week instead of three times per week.
Wednesday, November 7, 2007
kanBARoo Court, 5th Installment, Good Cop, Bad Cop at the State Bar
In prosecuting a State Bar case, the California State Bar's Office of the Chief Bar Counsel plays bad cop, and the Hearing Department of the State Bar Court plays good cop. These departments of the California State Bar work in concert. Not that they admit the complicity, but neither do they otherwise take any pains at concealment. Collaboration is evident from the timing of the court's processing of the papers: the way the Hearing Department expedites those matters and only those matters whose expeditious handling serves the Office of the Chief Trial Counsel.
A recent example. I was promised — more precisely, threatened with — expeditious handling of my motion for reconsideration of the State Bar Court's denial of my motion to dismiss the Notice of Disciplinary Charges. Eleven days passed after parties completed all filings. So much for expedited handling. Sometimes the opposite of expeditious handling serves the Office of the Chief Trial Counsel. Here, the State Bar Court aided that office to try to proceed to deposition before my motions tested the NDC. The court tried to give the Office of the Chief Trial Counsel the fishing expedition it wanted. If the Hearing Department decided it had to grant my motion to dismiss — the Rules of Procedure and at least six Supreme Court decisions directly require it — the Hearing Department would help the Office of the Chief Trial Counsel place another NDC in its stead. The Hearing Department would try to make sure the Office of the Chief Trial Counsel had the facts it needed, by allowing their collection before the case is at issue. The Hearing Department tries to minimize the respondent's rights, within the scope of reasonable minimization of the probability of reversal.
I had turned the legal tables on the State Bar, however, by basing my opposition to the motion to compel on the NDC's pendency. My opposition to the motion to compel arrived at the State Bar offices this Monday. That same day, the court issued its denial of my motion to reconsider. This rate of response is not a typical Hearing Department response rate; never, ordinarily, on the same day. I cannot explain timing so responsive, except where the Office of the Chief Bar Counsel pointed the Hearing Department to my connecting the two pleadings.
These observations may fall short of the standards for admissible evidence, but the prior question is: do the usual rules against ex parte communication actually govern the State Bar? To the contrary, do the judges of the Hearing Department regularly confer informally with State Bar counsel? Are they then violating any rule or statute; do they know it?
Besides the obvious nexus between these two departments of the State Bar Court, aspects of public policy that actually encourage ex parte communication between these departments provide another reason to doubt the State Bar feels constrained to avoid ex parte communication with Hearing Department judges. In Los Angeles, the Office of the Chief Trial Counsel and the Hearing Department of the State Bar Court reside respectively on floors four and five of one office building. Without knowing which, one must question either the wisdom or the intent of such propinquity. The physical arrangement alone bespeaks an enormous public-policy confusion and indecision regarding State Bar Court judges' independence from the Office of the Chief Trial Counsel.
An additional policy nexus between these departments of the State Bar — Hearing Department judges have been known to receive jobs as Chief Trial Counsel, the judges themselves seeking out the job change, because they consider the prosecutorial position a promotion. The Chief Trial Counsel is the quarterback of the State Bar team.
Decisional law construing administrative law guarantees an independent hearing in an administrative law court. The Supreme Court based that guarantee on its interpretation of relevant Government Code sections, which established standards for administrative law courts. The State Bar Court, similar in function to courts like those charged with disciplining physicians, has the trappings of an administrative court. However, the State Bar Count is not an administrative court; to the State Bar court, the laws governing administrative courts do not apply, and the decisional law interpreting those statutes does not apply. For the State Bar Court is a sui generis organization, from which status stems a considerable part of its mischief, as no well-construed body of law regulates it. Nowhere in the general appellate case law do you find any holdings imposing (or denying) the right of a State Bar Court respondent to enjoy freedom from bias by private communications from the Office of the Chief Trial Counsel. The Rules of Procedure of the State Bar Court expressly exclude the Government Code and the Code of Civil Procedure from applying to Bar case. A review court typically invokes those bodies of code in finding error due to ex parte communication.
In totality, however, the State Bar's governing law clearly bans ex parte communication with the judge, although no procedure is in place to effect that ban or even to reiterate it. For although the State Bar is charged with enforcing the Rules of Professional Conduct, in its own practice the Enforcement Division is particularly prone to ignore them. Rule 5-300(B) states that "A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer … " We on the outside of the State Bar Establishment, however, have no way of knowing whether the State Bar often abides by this rule or regularly breaches it. From appearances, it not only breaches the rule but also is aware of the transgressions only to such a degree that it refrains from admitting them. The State Bar takes few pains to keep the collaboration opaque to inference.
A recent example. I was promised — more precisely, threatened with — expeditious handling of my motion for reconsideration of the State Bar Court's denial of my motion to dismiss the Notice of Disciplinary Charges. Eleven days passed after parties completed all filings. So much for expedited handling. Sometimes the opposite of expeditious handling serves the Office of the Chief Trial Counsel. Here, the State Bar Court aided that office to try to proceed to deposition before my motions tested the NDC. The court tried to give the Office of the Chief Trial Counsel the fishing expedition it wanted. If the Hearing Department decided it had to grant my motion to dismiss — the Rules of Procedure and at least six Supreme Court decisions directly require it — the Hearing Department would help the Office of the Chief Trial Counsel place another NDC in its stead. The Hearing Department would try to make sure the Office of the Chief Trial Counsel had the facts it needed, by allowing their collection before the case is at issue. The Hearing Department tries to minimize the respondent's rights, within the scope of reasonable minimization of the probability of reversal.
I had turned the legal tables on the State Bar, however, by basing my opposition to the motion to compel on the NDC's pendency. My opposition to the motion to compel arrived at the State Bar offices this Monday. That same day, the court issued its denial of my motion to reconsider. This rate of response is not a typical Hearing Department response rate; never, ordinarily, on the same day. I cannot explain timing so responsive, except where the Office of the Chief Bar Counsel pointed the Hearing Department to my connecting the two pleadings.
These observations may fall short of the standards for admissible evidence, but the prior question is: do the usual rules against ex parte communication actually govern the State Bar? To the contrary, do the judges of the Hearing Department regularly confer informally with State Bar counsel? Are they then violating any rule or statute; do they know it?
Besides the obvious nexus between these two departments of the State Bar Court, aspects of public policy that actually encourage ex parte communication between these departments provide another reason to doubt the State Bar feels constrained to avoid ex parte communication with Hearing Department judges. In Los Angeles, the Office of the Chief Trial Counsel and the Hearing Department of the State Bar Court reside respectively on floors four and five of one office building. Without knowing which, one must question either the wisdom or the intent of such propinquity. The physical arrangement alone bespeaks an enormous public-policy confusion and indecision regarding State Bar Court judges' independence from the Office of the Chief Trial Counsel.
An additional policy nexus between these departments of the State Bar — Hearing Department judges have been known to receive jobs as Chief Trial Counsel, the judges themselves seeking out the job change, because they consider the prosecutorial position a promotion. The Chief Trial Counsel is the quarterback of the State Bar team.
Decisional law construing administrative law guarantees an independent hearing in an administrative law court. The Supreme Court based that guarantee on its interpretation of relevant Government Code sections, which established standards for administrative law courts. The State Bar Court, similar in function to courts like those charged with disciplining physicians, has the trappings of an administrative court. However, the State Bar Count is not an administrative court; to the State Bar court, the laws governing administrative courts do not apply, and the decisional law interpreting those statutes does not apply. For the State Bar Court is a sui generis organization, from which status stems a considerable part of its mischief, as no well-construed body of law regulates it. Nowhere in the general appellate case law do you find any holdings imposing (or denying) the right of a State Bar Court respondent to enjoy freedom from bias by private communications from the Office of the Chief Trial Counsel. The Rules of Procedure of the State Bar Court expressly exclude the Government Code and the Code of Civil Procedure from applying to Bar case. A review court typically invokes those bodies of code in finding error due to ex parte communication.
In totality, however, the State Bar's governing law clearly bans ex parte communication with the judge, although no procedure is in place to effect that ban or even to reiterate it. For although the State Bar is charged with enforcing the Rules of Professional Conduct, in its own practice the Enforcement Division is particularly prone to ignore them. Rule 5-300(B) states that "A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer … " We on the outside of the State Bar Establishment, however, have no way of knowing whether the State Bar often abides by this rule or regularly breaches it. From appearances, it not only breaches the rule but also is aware of the transgressions only to such a degree that it refrains from admitting them. The State Bar takes few pains to keep the collaboration opaque to inference.
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