One event demolished the State Bar establishment’s effective reliance on disbarment as a mark of Cain, to anchor coercive power: the 5-year disbarment of a sitting U.S. President, when the Arkansas Supreme Court disciplined then-President Bill Clinton, after a majority of the U.S. Senate failed to convict, and not a single Democratic Senator voted for conviction. The outcomes implied that one may be ethically qualified for the United States Presidency, yet lack the morals to practice law in Arkansas, a conclusion that the cynical and the idealistic both must reject. Either the U.S. Senate or the State of Arkansas’s State Bar Court equivalent was out of touch with American morals, and it wasn’t the Senate. Clinton's approval rating soon rose to an unprecedented 73%.
Clinton was disbarred based on a federal district court's order citing Clinton for contempt in the Jennifer Flowers proceeding. The allegedly contumacious conduct consisted of false statements Clinton provided in deposition, violating the court's discovery order. The court focused on two false statements: that Clinton had never been alone with Monica Lewinsky and that he had never had sexual relations with her. The Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas professional practice rules 8.4(c) and 8.4(d), which make it professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice
For one living and litigating under the California Constitution, which declares privacy on par with life and liberty in its inalienability, requiring under the Federal Rules that a litigant inform on his sexual partners seems barbaric. Without a direct showing of relevance to the present lawsuit, a federal plaintiff can force exposure of the most personal information. While a court should assign some culpability for the generalized offense of lying in court, it should also consider the altered ethical context, depending on the personal decision the respondent actually faced. Bar Rules typically distinguish different grades of unethical conduct, and the Arkansas rules offer this discussion of moral turpitude:
Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
There are other relevant measures of ethical magnitude, however, such as between breach of basic moral rule (malum in se) and breach of administrative regulation (malum prohibitum). Both malum in se and malum prohibitum infractions have some ethical relevance, but only malum in se violations are usually taken to indicate turpitude, because malum prohibitum infractions reflect only the single trait of law abidingness. While the rule against lying in sworn proceedings is malum in se in form, the underlying obligation to allow routine discovery of one’s sexual partners is malum prohibitum. There is no moral inevitability today for judicial access to all information potentially relevant to civil litigation; no moral inevitability today to afford civil litigants easy intrusion into an opponent’s sexual relationships; no moral inevitability today about holding the threat of future judicial inquest over every unconventional private act a person performs. California privacy law proves the absence of such moral inevitability. Lying to protect personal information from an ethically dubious intrusion is malum in se, insofar as it involves lying, and malum prohibitum, insofar as it involves a failure to comply with the discovery order requiring disclosure. The Arkansas Supreme Court Bar arm didn't consider the ethical dimension in sufficient depth, because it responded with the bureaucratic reflex and moralistic rigidity typical of the State Bar establishment, using the single amorphous concept of moral turpitude to erase distinctions.
The ethical crudeness of the Clinton disbarment decision, however, was not its main failing. The Arkansas Supreme Court should have been subject to federal preemption. It exceeded its jurisdiction in disciplining a President for his conduct as a Federal office-holder. The states have no jurisdiction to control the exercise of Presidential power or of the President's performance of his duties.
The court might have agreed, as it created the impression of imposing the sanction for conduct it observed during the Flowers proceeding, involving personal rather than Presidential conduct. Clinton’s grand jury testimony during the Special Prosecutor’s investigation of his Presidential conduct impeached his Flowers testimony, said the court, but the same logic allows that the Flowers testimony impeached Clinton’s statements to the Starr grand jury. While the district court judge wrote that she directly observed the contumacious conduct, she was mistaken in her evidentiary characterization. She actually observed only a conflict between two testimonial acts. The judge observed or was entitled to take judicial notice of a conflict between Clinton's testimony in his Flowers deposition and his testimony before the Kenneth Starr grand jury, indicating that in one of the two instances of testimony, Clinton was lying, leaving the question a mixed State and federal law question, pre-empted by federal law. The Arkansas court was not entitled to disbar Clinton.
Showing posts with label obstruction of justice. Show all posts
Showing posts with label obstruction of justice. Show all posts
Monday, February 11, 2008
Saturday, December 29, 2007
kanBARoo Court. 21st Installment. The State Bar Demands Atonement.
This installment presents some court filings by the State Bar. First I will print and comment on, by way of update, the “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay; Memorandum of Points and Authorities.” My motion for reconsideration and request for immediate stay is here. My original opposition, appended to the motion for consideration, is here. Then we’ll look at a State Bar filing that is, depending on your mood, particularly funny or hideous.
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Begin the State Bar's Document
Memorandum of points and authorities
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. So, this Court does not have jurisdiction to order Respondent to appear for an Order to Show Cause. That remains the position of the State Bar. Without Waiving that position, the State Bar submits this opposition.
I. Respondent has failed to state any grounds for the Hearing Department to issue a stay of these proceedings.
Respondent cites no rule which provides for any generalized stay of proceedings in the Hearing Department. Stays of proceedings in the Hearing Department may only be granted under certain terms where a Respondent’s physical or mental condition is at issue or when a party files a petition for interlocutory review. (Rules 184 and 300(h)(1), Rule of Procedure of the State Bar of California). Neither circumstance applies in this matter. Rather, it appears as if Respondent seeks to renew his prior request for an immediate stay filed November 28, 2007, in which he asserted he intended to file a petition for interlocutory review but never properly did so. That request was denied by this Court on December 4, 2007, for want of good cause. Now, Respondent has waged a campaign against the assigned Deputy Trial Counsel and court clerk in which he alleges a variety of misdeeds and conspiracy theories that have no basis in fact. His unfounded, libelous, and absurd allegation do not provide any legal ground for this Court to grant a stay.
II. The Motion does not state new or different facts, circumstances or law and the Court’s decision does not contain any error of fact or law.
Grounds for a motion to reconsider are new or different facts, circumstances, or law or that the Court’s order or decision contains one or more errors of law or fact. (Rule 224(b) of the Rules of Procedure of the State Bar Court.)
Respondent seems only to assert that the Court did not consider his opposition to the State Bar’s Motion for Entry of Default, as his grounds for seeking reconsideration. In fact, he attaches as Exhibit A, his Opposition to Motion for Entry of Default. But here, the Order to Show Cause was issued after the State Bar made a Motion for Terminating Sanctions. The Court ordered Respondent to file an opposition to that motion on or before 5;00 p.m. on December 11, 2007. He did not. So, Respondent has failed to allege any grounds for the Court to reconsider its Order requiring Respondent to show cause as to why terminating sanctions should not be imposed.
Conclusion.
Respondent has failed to assert any proper grounds for relief. His motions should therefore, be denied.
END the State Bar's DOCUMENT
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The prosecutrix, as she mentions above, has filed her own motion for reconsideration. The State Bar has again involved itself in an impermissible procedural incompatibility, arguing in one motion that the court is without jurisdiction to order the OSC and in a contemporaneous opposition that the court should not reconsider its order.
The prosecutrix tries to pretend that nothing new has happened, but an immediate stay, based on interlocutory review, is justified, because my filing attempt was thwarted by foul play. The prosecutrix does not mention the evidence, her inability to produce the document in question. She has never offered to prove it in her possession or control. Yet she has admitted receiving it. My simple argument is that if she didn’t provide the clerk with the copy returned to me, without proof of service, then where is her copy? If she happened to lose it, did I just happen to know, or did I supposedly take the great risk of making a claim that, if false, she should easily refute? I don’t think she will be getting away with this, but if she can, the institution in question is no longer serving as a court of law.
So what is the court doing. Nothing. Fifteen days have passed since I filed my motion for reconsideration and request for immediate stay, sending a copy by certified mail to Judge Honn, and the court has said absolutely nothing. The court, no doubt, is waiting to sort matters out at the OSC it calendared for January 2, or else, to find a way to avoid the issue at that convocation. My anti-waiver strategy dictates that I not attend, and I shall not. I harbor no doubt that under the strong evidence presented of reversible misconduct, I am entitled to hear something from the court by this time. I cannot be required to participate in hearings, when I am denied ordinary access to the court through the clerk’s office in preparation.
The court ordered the OSC to determine whether my failure to cooperate with discovery should be entered as an aggravating factor. At such a hearing, the judge could easily deny even hearing my argument for a stay. Paranoid? To get a real idea of the police state thinking of State Bar Enforcement, consider the prosecutrix’s brief for the January 2, 2008 hearing. Alternatively, you may find these documents hilarious.
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BEGIN State Bar's DOCUMENT
Statement of non-waiver
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. That remains the position of the State Bar. Without waiving that position, the State Bar submits this brief at the Court’s invitation.
Respondent’s failure to cooperate in these proceeding should be considered an aggravating factor in determining the appropriate level of discipline.
Aggravating factors are not required to be separately charged but facts that could have formed the basis for an additional charge which are not in the Notice of Disciplinary Charges cannot be relied on in aggravation where, for example, a Respondent is found in default and not fairly put on notice that such facts will be relied on (Matter of Heiner) 1 Cal. State Bar Ct. Rptr. 301 [emphasis added].) Here, by way of this Court’s Order of December 12, 2007, Regarding Motion for Entry of Default and Order to Show Cause on Motion for Order Imposing Sanctions, Respondent has been put on notice that his failure to cooperate in these proceedings may be considered an aggravating factor.
Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct and lack of cooperation wit the State Bar during disciplinary proceedings. (Std. 1.2(b)(v), (vi).)
A respondent’s sporadic participation in disciplinary proceedings despite warnings from the judge demonstrates indifference to professional obligations and a substantial risk to the public. (Matter of Boyne (1993) 2 cal. State Bar Ct. Rptr. 389.) Also, a respondent’s use of specious and unsupported arguments in an attempt to evade culpability demonstrates a lack of appreciation for his misconduct and his obligations as an attorney, and the persistent lack of insight into the deficiencies of his professional behavior is an independent, aggravating factor (Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631.) So too is a respondent’s use of obstructive tactics during the disciplinary proceeding including abuse of discovery and frivolous motions and a respondent’s lack of appreciation of the necessity for timely, meaningful participation in the disciplinary process. (Matter of Varakin 91994) 3 cal. State Bar Ct. Rptr. 179; Matter of Hunter (1994) 3 cal. State Bar Ct. Rptr. 63.)
Here, Respondent has consistently failed to file a response pursuant to Rule 103, despite the rules requiring it and this Court’s orders that he do so. He has failed to participate in discovery, requiring the State Bar to file a Motion to Compel his deposition which was granted. Thereafter, he failed to appear for the deposition. He failed to file a pre-trial statement. He has filed numerous untimely and procedurally incorrect, motions in which he ha raised specious and unsupported arguments and has accused the assigned Deputy Trial Counsel and court clerk of a variety of misdeeds and conspiracies that have no basis in fact and that rise to the level of paranoia, absurdity, and libel. All of those factors can and should be considered aggravating in this Court’s recommendation of the appropriate level of discipline in this matter.
Conclusion
Respondent has had proper notice that uncharged misconduct may be considered by the Court in determining the appropriate level of discipline in this matter. There are a number of aggravating factors that the Court can and should find in recommending the appropriate level of discipline.
END State Bar's DOCUMENT
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A few points:
1) The State Bar thinks that without having proven the predicate, it can reasonably assail me for failing to “atone” for the consequences of my alleged misconduct;
2) Although I have filed numerous papers arguing that I cannot be required to participate in discovery until exhausting my challenges to the notice of disciplinary charges, the State Bar has never responded to those arguments, except by characterizing them as “specious.” Instead it pretends that it can condemn conduct without even considering the justifications offered, the sclerosis of a bureaucracy that has never had to fight for its positions fairly;
3) The State Bar claims I have presented no evidence for the prosecutrix’s misconduct, whereas in light of her failure to claim possession of the subject document while admitting receipt, I have actually proven that misconduct;
4) The State Bar repeatedly claims that I failed to file a timely responsive pleading, although the court has repeatedly accepted my documents and termed them responsive pleadings;
5) Very oddly, the State Bar insists on applying standards applicable to a clerk's default to a motion directed to the court. Apart from this being an incredibly stupid legal construction, it also amounts to an enraged insult directed at its own court, as the Hearing Department fails to deliver the Office of the Chief Trial Counsel's presumed entitlements. "You are no more than our clerk," screams the State Bar to the Hearing Department.
------------------------------------------
Begin the State Bar's Document
Memorandum of points and authorities
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. So, this Court does not have jurisdiction to order Respondent to appear for an Order to Show Cause. That remains the position of the State Bar. Without Waiving that position, the State Bar submits this opposition.
I. Respondent has failed to state any grounds for the Hearing Department to issue a stay of these proceedings.
Respondent cites no rule which provides for any generalized stay of proceedings in the Hearing Department. Stays of proceedings in the Hearing Department may only be granted under certain terms where a Respondent’s physical or mental condition is at issue or when a party files a petition for interlocutory review. (Rules 184 and 300(h)(1), Rule of Procedure of the State Bar of California). Neither circumstance applies in this matter. Rather, it appears as if Respondent seeks to renew his prior request for an immediate stay filed November 28, 2007, in which he asserted he intended to file a petition for interlocutory review but never properly did so. That request was denied by this Court on December 4, 2007, for want of good cause. Now, Respondent has waged a campaign against the assigned Deputy Trial Counsel and court clerk in which he alleges a variety of misdeeds and conspiracy theories that have no basis in fact. His unfounded, libelous, and absurd allegation do not provide any legal ground for this Court to grant a stay.
II. The Motion does not state new or different facts, circumstances or law and the Court’s decision does not contain any error of fact or law.
Grounds for a motion to reconsider are new or different facts, circumstances, or law or that the Court’s order or decision contains one or more errors of law or fact. (Rule 224(b) of the Rules of Procedure of the State Bar Court.)
Respondent seems only to assert that the Court did not consider his opposition to the State Bar’s Motion for Entry of Default, as his grounds for seeking reconsideration. In fact, he attaches as Exhibit A, his Opposition to Motion for Entry of Default. But here, the Order to Show Cause was issued after the State Bar made a Motion for Terminating Sanctions. The Court ordered Respondent to file an opposition to that motion on or before 5;00 p.m. on December 11, 2007. He did not. So, Respondent has failed to allege any grounds for the Court to reconsider its Order requiring Respondent to show cause as to why terminating sanctions should not be imposed.
Conclusion.
Respondent has failed to assert any proper grounds for relief. His motions should therefore, be denied.
END the State Bar's DOCUMENT
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The prosecutrix, as she mentions above, has filed her own motion for reconsideration. The State Bar has again involved itself in an impermissible procedural incompatibility, arguing in one motion that the court is without jurisdiction to order the OSC and in a contemporaneous opposition that the court should not reconsider its order.
The prosecutrix tries to pretend that nothing new has happened, but an immediate stay, based on interlocutory review, is justified, because my filing attempt was thwarted by foul play. The prosecutrix does not mention the evidence, her inability to produce the document in question. She has never offered to prove it in her possession or control. Yet she has admitted receiving it. My simple argument is that if she didn’t provide the clerk with the copy returned to me, without proof of service, then where is her copy? If she happened to lose it, did I just happen to know, or did I supposedly take the great risk of making a claim that, if false, she should easily refute? I don’t think she will be getting away with this, but if she can, the institution in question is no longer serving as a court of law.
So what is the court doing. Nothing. Fifteen days have passed since I filed my motion for reconsideration and request for immediate stay, sending a copy by certified mail to Judge Honn, and the court has said absolutely nothing. The court, no doubt, is waiting to sort matters out at the OSC it calendared for January 2, or else, to find a way to avoid the issue at that convocation. My anti-waiver strategy dictates that I not attend, and I shall not. I harbor no doubt that under the strong evidence presented of reversible misconduct, I am entitled to hear something from the court by this time. I cannot be required to participate in hearings, when I am denied ordinary access to the court through the clerk’s office in preparation.
The court ordered the OSC to determine whether my failure to cooperate with discovery should be entered as an aggravating factor. At such a hearing, the judge could easily deny even hearing my argument for a stay. Paranoid? To get a real idea of the police state thinking of State Bar Enforcement, consider the prosecutrix’s brief for the January 2, 2008 hearing. Alternatively, you may find these documents hilarious.
---------------------------------------
BEGIN State Bar's DOCUMENT
Statement of non-waiver
On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. That remains the position of the State Bar. Without waiving that position, the State Bar submits this brief at the Court’s invitation.
Respondent’s failure to cooperate in these proceeding should be considered an aggravating factor in determining the appropriate level of discipline.
Aggravating factors are not required to be separately charged but facts that could have formed the basis for an additional charge which are not in the Notice of Disciplinary Charges cannot be relied on in aggravation where, for example, a Respondent is found in default and not fairly put on notice that such facts will be relied on (Matter of Heiner) 1 Cal. State Bar Ct. Rptr. 301 [emphasis added].) Here, by way of this Court’s Order of December 12, 2007, Regarding Motion for Entry of Default and Order to Show Cause on Motion for Order Imposing Sanctions, Respondent has been put on notice that his failure to cooperate in these proceedings may be considered an aggravating factor.
Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct and lack of cooperation wit the State Bar during disciplinary proceedings. (Std. 1.2(b)(v), (vi).)
A respondent’s sporadic participation in disciplinary proceedings despite warnings from the judge demonstrates indifference to professional obligations and a substantial risk to the public. (Matter of Boyne (1993) 2 cal. State Bar Ct. Rptr. 389.) Also, a respondent’s use of specious and unsupported arguments in an attempt to evade culpability demonstrates a lack of appreciation for his misconduct and his obligations as an attorney, and the persistent lack of insight into the deficiencies of his professional behavior is an independent, aggravating factor (Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631.) So too is a respondent’s use of obstructive tactics during the disciplinary proceeding including abuse of discovery and frivolous motions and a respondent’s lack of appreciation of the necessity for timely, meaningful participation in the disciplinary process. (Matter of Varakin 91994) 3 cal. State Bar Ct. Rptr. 179; Matter of Hunter (1994) 3 cal. State Bar Ct. Rptr. 63.)
Here, Respondent has consistently failed to file a response pursuant to Rule 103, despite the rules requiring it and this Court’s orders that he do so. He has failed to participate in discovery, requiring the State Bar to file a Motion to Compel his deposition which was granted. Thereafter, he failed to appear for the deposition. He failed to file a pre-trial statement. He has filed numerous untimely and procedurally incorrect, motions in which he ha raised specious and unsupported arguments and has accused the assigned Deputy Trial Counsel and court clerk of a variety of misdeeds and conspiracies that have no basis in fact and that rise to the level of paranoia, absurdity, and libel. All of those factors can and should be considered aggravating in this Court’s recommendation of the appropriate level of discipline in this matter.
Conclusion
Respondent has had proper notice that uncharged misconduct may be considered by the Court in determining the appropriate level of discipline in this matter. There are a number of aggravating factors that the Court can and should find in recommending the appropriate level of discipline.
END State Bar's DOCUMENT
----------------------------------
A few points:
1) The State Bar thinks that without having proven the predicate, it can reasonably assail me for failing to “atone” for the consequences of my alleged misconduct;
2) Although I have filed numerous papers arguing that I cannot be required to participate in discovery until exhausting my challenges to the notice of disciplinary charges, the State Bar has never responded to those arguments, except by characterizing them as “specious.” Instead it pretends that it can condemn conduct without even considering the justifications offered, the sclerosis of a bureaucracy that has never had to fight for its positions fairly;
3) The State Bar claims I have presented no evidence for the prosecutrix’s misconduct, whereas in light of her failure to claim possession of the subject document while admitting receipt, I have actually proven that misconduct;
4) The State Bar repeatedly claims that I failed to file a timely responsive pleading, although the court has repeatedly accepted my documents and termed them responsive pleadings;
5) Very oddly, the State Bar insists on applying standards applicable to a clerk's default to a motion directed to the court. Apart from this being an incredibly stupid legal construction, it also amounts to an enraged insult directed at its own court, as the Hearing Department fails to deliver the Office of the Chief Trial Counsel's presumed entitlements. "You are no more than our clerk," screams the State Bar to the Hearing Department.
Thursday, December 13, 2007
kanBARoo Court. 16th Installment. What happened?
Nobody ventured a prediction as to how the court would rule, and I can't say I blame you. The court was in a nice predicament, and who could say what it would do? If it entered my default, I'm out of court and the Hearing Department avoids the Review Department's interlocutory review. The cost, however, is setting me up to win on an appeal based — not on my theory that the Bar hasn't pled its case with specificity (which may or may not be mooted) — but on the concrete and specific facts of court's failure to protect my due process rights from the prosecutrix's incursions.
What was the alternative? If the court denied the motion to dismiss, it would be countenancing my accusations of deputy trial counsel's intermeddling. This would then require that it investigate and disbar her, to the shame of the State Bar and with uncalculated implications for my case and other cases she has handled. As close and as subordinating as the relations are between the office of the prosecutrix's boss and the judge, this was unlikely.
I'm now going to get the anticlimactic ending out of the way, to proceed without that pall to the completely unexpected and truly fascinating details. Then to the apperception that the case has matured sufficiently that I can see how I can win it. This case has moved beyond the point where one sets the stage so that favorable events can transpire. The anticlimactic ending is that the judge managed to deny the prosecutrix's motion to enter default based on an apparently technical fault in the prosecutrix's motion.
Boring in appearance; fascinating in essence. First, the court could avoid considering my charges of gross prosecutorial misconduct only because it never saw them. The court never received my opposition papers. The prosecutrix must have had the file copy intercepted or deflected, after receiving her service copy and finding herself inculpated. I find it hard to believe, but in assessing likelihoods, you have to follow the logic of the evidence.
What's fascinating about the way the judge justified denying the motion to enter default was that he was dead wrong about the technicality he invoked. The judge had before him an unopposed motion to enter default that he so strongly needed to deny that he concocted a transparently unsound reason to deny the home team's motion. The judge ruled that the motion was untimely, because it failed to allow the five days for service added to the time ordered by the court. In truth, not only the prosecutrix but I as well believed, and believed correctly, that since the court said 20 days from the order's filing, it meant exactly that, not 20 days from the order's service. Every paralegal knows the distinction.
There are so many things fishy about this that it would be tedious to list more than a couple. Why did the court grant the motion to shorten time, if the motion failed on its face because of untimeliness? Why did the court fail to condition the denial as “without prejudice to remaking the motion," if the court's real reason was mere untimeliness?
What the court did do was vacate the trial date, vacate the pretrial conference date, and set an OSC to consider sanctions for my failing to participate in discovery. I responded the next day (today) with a motion to reconsider the order for an OSC, in light of the "new facts" contained in my deflected opposition to the default. I attached a copy of the deflected opposition as an exhibit and mailed a copy with cover letter to the judge by certified mail, labeled "PERSONAL AND CONFIDENTIAL."
In the installment after the next, I'll discuss how this level of prosecutorial misconduct creates a straight tactical path to prevailing in this matter. The potential contrasts with the anemic pseudostrategies of Bar Establishment defense lawyers, who generally have spent years as deputy trial counsel for the State Bar, where they were thoroughly brainwashed. In the next installment, posted concurrently, I publish my "Motion to Dismiss the Notice of Disciplinary Charges for Failing to State Disciplinable Charges." It sets out the basic procedural legal theory that has gotten this case to this point, although my later papers include some more compelling authorities.
To best understand this blog:
* Consider reading installments 1-7, successively; then,
* Follow your interests.
Saturday, December 8, 2007
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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Friday, December 7, 2007
kanBARoo Court. 14th Installment. Turning Point.
The California State Bar's Enforcement Division, Hearing Department, and Review Department share a common building, undermining any contemplated adversarial quality in their relations. The Enforcement Division and the Hearing Department reside on adjacent floors; the Hearing Department and the Review Department are on the same floor and share their clerical office. That office was the place where Deputy Trial Counsel Melanie J. Lawrence perpetrated a fraud against me and the court to try to defeat my petition for review. First, I'll describe what I know Ms. Lawrence did and why it is a serious wrong. Then, I'll set out how I know this account is factual and how I can prove it.
Ms. Lawrence meddled with the clerk's reception of my petition for review of my motion to dismiss and interfered with its filing. Specifically, she advised the clerk to reject my filing based on a supposed lack of a proof of service. Then, she created the appearance of deficiency by substituting her unsigned proof of service for the clerk's signed one to engineer a filing delay. Ms. Lawrence falsified a court document because she knows my legal position is correct, and she fears the review department will agree.
Ms. Lawrence committed two grades of moral turpitude. To distinguish them helps in perceiving just how despicable is Ms. Lawrence's conduct. In discussing the matter with the clerk, Ms. Lawrence breached a rule of legal ethics prohibiting ex parte communication. Counsel should funnel argument designed to persuade the court through authorized channels to avoid unfair influence and decisions taken without hearing both sides. Ex parte communication was the subject of the fifth installment, where I claimed these proscribed interactions must be prevalent but immensely hard to prove. State Bar respondents have alleged that ex parte communications violated their due-process rights, but without denying that ex parte communications pose a due-process issue, the courts have been unpersuaded of the ethical infractions.
Ex parte communication potentially denies a respondent due process but is far exceeded in its vileness by the second grade of moral turpitude. Ms. Lawrence colluded with or manipulated the clerk to dispose of the actual signed proof of service and to represent her own copy as the one I tried to file. This is frankly criminal conduct, and my being subjected to it could lead to a "dismissal in the interest of justice." This escalation might convince the Hearing Department, on the other hand, to avoid immediate embarrassment before the Review Department by entering the default Lawrence seeks. The fraud and my response to it in several motions and oppositions should prove a crisis point in the case, where the court either withdraws all confidence from the prosecutrix or closes ranks with her.
How did this prosecutrix become first proven ex parte communicator among the Office of the Chief Trial Counsel's minions? The proof itself is simple. I know I sent out only a single unexecuted proof of service, and that was the proof of service to Ms. Lawrence. I sent the court signed proofs of service but served the opposing party an unsigned one. This is my routine practice, according with law and logic better than the common practice of signing them all.
Many lawyers 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 ran for joy to her friend in the clerk's office. She handed the clerk the document and said it must be rejected for want of signature. Lawrence emphasized the rejection should be sent out that day, as the clerk mailed the rejection the day Lawrence received her service copy. The clerk accepted Lawrence's document as identical to the documents filed, packed them off to me, and disposed of the others.
If I am wrong, the prosecutrix can easily so prove 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, distinguishable because, though unsigned, the proof is hand-dated.
Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.
Ms. Lawrence meddled with the clerk's reception of my petition for review of my motion to dismiss and interfered with its filing. Specifically, she advised the clerk to reject my filing based on a supposed lack of a proof of service. Then, she created the appearance of deficiency by substituting her unsigned proof of service for the clerk's signed one to engineer a filing delay. Ms. Lawrence falsified a court document because she knows my legal position is correct, and she fears the review department will agree.
Ms. Lawrence committed two grades of moral turpitude. To distinguish them helps in perceiving just how despicable is Ms. Lawrence's conduct. In discussing the matter with the clerk, Ms. Lawrence breached a rule of legal ethics prohibiting ex parte communication. Counsel should funnel argument designed to persuade the court through authorized channels to avoid unfair influence and decisions taken without hearing both sides. Ex parte communication was the subject of the fifth installment, where I claimed these proscribed interactions must be prevalent but immensely hard to prove. State Bar respondents have alleged that ex parte communications violated their due-process rights, but without denying that ex parte communications pose a due-process issue, the courts have been unpersuaded of the ethical infractions.
Ex parte communication potentially denies a respondent due process but is far exceeded in its vileness by the second grade of moral turpitude. Ms. Lawrence colluded with or manipulated the clerk to dispose of the actual signed proof of service and to represent her own copy as the one I tried to file. This is frankly criminal conduct, and my being subjected to it could lead to a "dismissal in the interest of justice." This escalation might convince the Hearing Department, on the other hand, to avoid immediate embarrassment before the Review Department by entering the default Lawrence seeks. The fraud and my response to it in several motions and oppositions should prove a crisis point in the case, where the court either withdraws all confidence from the prosecutrix or closes ranks with her.
How did this prosecutrix become first proven ex parte communicator among the Office of the Chief Trial Counsel's minions? The proof itself is simple. I know I sent out only a single unexecuted proof of service, and that was the proof of service to Ms. Lawrence. I sent the court signed proofs of service but served the opposing party an unsigned one. This is my routine practice, according with law and logic better than the common practice of signing them all.
Many lawyers 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 ran for joy to her friend in the clerk's office. She handed the clerk the document and said it must be rejected for want of signature. Lawrence emphasized the rejection should be sent out that day, as the clerk mailed the rejection the day Lawrence received her service copy. The clerk accepted Lawrence's document as identical to the documents filed, packed them off to me, and disposed of the others.
If I am wrong, the prosecutrix can easily so prove 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, distinguishable because, though unsigned, the proof is hand-dated.
Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.
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