79th Installment. Chief Trial Counsel's Office Admits Grave Lapses in Bar Prosecutors' Legal Ethics

9^th in Philip E. Kay series
In its brief opposing Kay's petition for writ of review, the California State Bar admitted that, in prosecuting cases initiated by judges, the Bar habitually commits acts of moral turpitude. These admissions, made only to avoid more damaging inferences by the legal community, establish as never before that the State Bar violates respondents' due-process rights and prosecutes at cross-purposes with its statutory public-protection role.

1. Concealed ex-parte communication.
The Konig case, an employment suit by a State Bar prosecutor, laid bare the State Bar's motives. The remarkable story is that the State Bar tried to attain two illicit objectives with one turpitudinous act by concealing from Kay that Judge Anello was the complaining witness. This was useful for two reasons. First, the State Bar secured unlimited time to prepare its frame-up. Second, the State Bar advanced its project of rehabilitating Judge Anello's reputation by concealing the judge's role in that project's initiation.

Konig: "If Judge Anello is not entitled to know why the NDC hasn't been filed and why he hasn't been able to reclaim his reputation publicly, then I think someone else needs to explain that to him." (Memo from Konig to superiors (August 4, 2003).)

Recouping a judge's reputation isn't an authorized purpose for State Bar prosecutions. It's a corrupt purpose: we don't even know the State Bar's reward for pleasing judges, and it's a little surprising that nobody in the legal-ethics world wants to find out. The evidence unearthed in the Konig case, records of conversations between Konig and his controllers, show then-prosecutor Konig in discussions with Judge Anello behind Kay's back, as neither Judge Anello nor the State Bar informed Kay, as the rules require, when Anello complained against Kay.

Konig's superiors were concerned that Konig was endangering Anello's confidentiality, and Konig freely expressed his concern with pleasing Anello.

Konig: "The question of who initiated this investigation has now been raised by one of the two individuals. As previously indicated, to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Letter from Konig to Judge Anello (January 7, 2003).)

Konig: "I was more interested in having [Kay] admit responsibility as that would serve as an apology to Judge Anello and that I would consider entirely stayed suspension if that occurred." (Memo from Konig (August 4, 2003).

Why would it damage the State Bar's case if Kay knew the State Bar was discussing a complaint against him? The reason is that the State Bar was illegally circumventing the five-year statute of limitations.

This is all amazing enough, but it isn't new. The new information, supplied by the State Bar in its opposition to Kay's petition for writ of review is that the Office of Chief Trial Counsel routinely violates its Rules of Procedure by not counting judges as "Complainants." This practice denies respondents the due limitations period.

It is the practice of the State Bar to treat all complaints initiated by Judges as SBI [State Bar Initiated] Complaints. (State Bar Opposition at p. 20.)

The California State Bar Rules of Procedure rule 2.28 defines "Complainants": "'Complainant' is a person whose communication generates an inquiry or a complaint.'" Rules of Procedure rule 2403(d) establishes that investigations initiated by a judge's allegations are Complainant-Initiated, not State Bar Initiated. The rule giving the statute of limitations is Rule 51(a): "A disciplinary proceeding based solely on a complainant's allegation of a violation of the State Bar act or Rules of Professional Conduct shall be initiated within five years from the date of the alleged violation."

By plain meaning, the rule requires that the State Bar treat complaints by judges as complainant generated, but the State Bar's misconduct is worse than it looks. The State Bar knows a judge is a Complainant under the Rules of Procedure; otherwise, why did Konig's supervisors say his public identification would jeopardize the case? The State Bar also knows that its deviant rule interpretations confuse respondents, but it takes no steps to clarify the meaning: with this miscue and others, the State Bar exploits respondents' confusion, another example where the State Bar cultivates ambiguous rules as a weapon against respondents being the ambiguous schedule for petitions for writ of review. Most importantly, the State Bar isn't even consistent in treating judges' complaints as SBI, as the State Bar's letter to Judge Anello offers the judge his choice in the matter, a practice even harder to square with the express language of the Rules of Procedure.

Konig: "to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two [Kay and cocounsel Dalton] will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Konig Letter to Judge Anello (January 7, 2003).)

2. Misrepresentation of Kay's unstained career.
Another claim the State Bar knows false is that Kay "has made a career out of histrionics designed to control and disrupt whatever courtroom he is in and unnecessarily prolong the process." (State Bar's Opposition at p. 31.) The charges will survive despite their implausibility only because a review court doesn't weigh evidence, but the State Bar has now put Kay's career at issue. The libelous outburst allows Kay to argue that a lawyer charged with repeated violation of court rules and decorum would have been found in contempt or at least sanctioned for such behavior. Kay's unblemished record refutes the State Bar's general case theory, which the quoted outburst summarizes.

The outburst compels readers and the reviewing court to ask, why did the judges who brought charges before the State Bar fail to sanction Kay at trial? Their excuses are lame. We hear Judge Weber supposedly avoided declaring a mistrial, despite scolding Kay for alleged misconduct, because the judge wasn't certain Kay prejudiced the jury.

When Judge Weber found that it was a close call whether defendants were denied a fair trial, she was not holding that it was a close call whether Petitioner committed misconduct, but whether his misconduct fundamentally prejudiced the other party's right to a fair trial. [Citation.] In fact, as she testified she found his conduct before her "appalling." (State Bar Opposition to Kay's Petition for Writ of Review at p. 21.)

Completely lacking in credibility (and irrelevant—who cares if Judge Weber was "appalled"). Repeated misconduct in various courtrooms always creating "close calls" —but never more—flies in the face of the laws of probability. Judge Anello even testified that Kay announced he wouldn't obey the judge's so-called orders. This announcement suffices to find contempt unless the commands weren't orders; but judicial one-upmanship, as any trial lawyer knows, is all too common when incompetent, obsessive-compulsive judges micromanage trials. The futile warnings of such judges don't constitute orders, but the State Bar's main "evidence" consisted of quoting these judges remonstrating with Kay and applying labels like "appalling." While factual implausibility isn't a review criterion, the eagerness of the State Bar to pursue a case so implausible, its smug rejection of Kay's concern for plausibility just because the State Bar can get away with it, deserves the widest condemnation from lawyers and ethicists.

3. Absurd charges alleging an ancient citation error.
The State Bar's readiness to pursue absurd charges based on technicalities is also demonstrated by the ridiculous charge concerning a case-law citation, yes, a single citation. The State Bar found that Kay willfully misled the court by offering an inapposite citation, when the document containing the citation was a) written by cocounsel; b) presented more than five years ago.

What does the State Bar hope to gain with a charge so absurd and so late: discipline for an alleged miscite five years ago, not even committed by Kay? The question can be answered precisely. To maintain its credibility, the State Bar Court labors to preserve a facade of substantial review. Had entry of default not precluded matter's hearing by the Review Department, review would eliminate the miscitation charge. The State Bar's routine practice includes charges it knows are absurd; the State Bar justifies this practice by what its prosecutors call "adversarial procedure." Including frivolous charges enables the State Bar Court's Review Department to appear to perform review. Including frivolous charges also often allows the State Bar Court to uphold the charges, despite the absence of proof, when a respondent defaults. Issuing charges the State Bar knows are unsustainable is as clear an example as you'll find anywhere of "moral turpitude." (Bus. & Prof. Code, § 6106.)

Interlude 11: Drexel and the DAs

Chief Trial Counsel Scott J. Drexel's removal has so demoralized the California State Bar bureaucracy that its trial counsel have succumbed to temptation to do the unthinkable: debate a former respondent. The discussion was at Crime and Federalism, a proprosecutorial blog, which bemoaned Drexel's firing. To start toward the end with comments by a current state-bar respondent, an elderly and disabled attorney, who describes his ordeal before the State Bar:

Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish. I know enough from experience the Drexel marching order is a "take no prisoners" operation that justifies its inquisition by parroting "We're protecting the public." Anybody critical of Scott Drexel must be opposed to protecting the public. Right? Drexel's M.O. has been to squander millions in building an empire devoted to destroying the sole practitioner, preferably elderly and disabled,while the big firm lawyers only find their licenses lifted due to federal court convictions. Do not believe the State Bar prosecution press releases as they are strictly public relation promotions like the above.

Attorney William Wells later added:

Further to the Scott Drexel playbook. During a continued trial I sufferred multiple fractures from a fall that required surgical repairs, hospitalization and bed confinement so I obtained a Declaration from a physician aware of these facts and filed it with a motion to continue in the routine manner in such events. Unknown to me, the Deputy trial counsel Erin M. Joyce secretly issued a subpoena for the personal appearance in court of my physcian over a two week span and caused a week of stalking, trespassing and harassment by a State Bar Investigator of my physcian at his home, office and hospital. Despite no personal service, Erin Joyce, trial counsel, caused to be prepared a false Declaration of personal service that only surfaced when a Motion to Quash was filed by my physcian and disclosed that the Declaration of Service was on its face totally illegal. The court agreed and granted the Motion to Quash but no sanctions or attorney fees and no redress by a tort action for abuse of process. If I need a Declaration from my physcian what would be your response? and his response? Who could blame him? This is an example of Nifong-Drexel protecting the public. [My emphasis, for legal significance.]

My only disagreement with poster William Wells is: "Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish." To the contrary, I think readers can appreciate the thuggish mentality of the State Bar simply by reading its contributions to the discussion. The State Bar communicates with telltale signature rhetoric, immediately conveying how it views its function.

The first commenter was a former State Bar prosecutor who recycles his public relations blurb for Drexel. His boilerplate included this observation: "Not one of the cases I brought to trial resulted in a finding of no culpability." This half-truth is the standard argument for Drexel's project of public posting from a case's inception, and I pointed out that the relevant statistic — even if you trust the Bar Court to provide the criterion — is the percentage of charges dismissed with prejudice, since public posting accuses the attorney of the full set of charges. The Bar Court dismisses the majority of charges!

Normally, the State Bar wouldn't compromise its arrogance or risk exposing its bad motives and poor competence by intervening in a public discussion. The State Bar is so unused to contention that it can't state a rational argument. Instead of dealing with my point about the dismissal with prejudice of most charges, never answered, the at-the-time-anonymous poster referred readers to my State Bar member record; nothing more except to put "position" when referring to "Mr. Diamond's position" in scare quotes.

Back to my quibble with William Wells concerning the need for first-hand experience to appreciate the State Bar's oppressiveness. From the ad hominem method of obfuscation alone, one could already surmise much. The signature use of scare quotes in place of arguments sufficed to categorize the poster as a bar prosecutor. When he replied to my response, which pointed out his refusal to identify himself while attacking me personally, he compromised and signed with his first name, "Patrick": my old friend Supervising Trial Counsel Patrick O'Brien. O'Brien was in charge of my case at the beginning. After he made some intemperate remarks, such as alerting me that he would report my refusal to comment orally as an admission, he transferred the case to our prosecutrix, Melanie J. Lawrence. Apparently the bar thought the case needed a "woman's" touch. [Scare-quote irony intended.]

Apart from these hints to William Wells and others on how to detect oppression at a glance, I want to deal with one other question the Crime & Federalism article raises concerning the Drexel removal: Drexel's prosecution of several San Diego deputy district attorneys. District attorneys usually avoid any bar investigation, but the reason isn't that the bar is reluctant to prosecute district attorneys. The judges, through California's Chief Justice of the Supreme Court, are the only sufficiently centralized authority capable of exerting major power over bar affairs, and district attorneys' withholding evidence doesn't please Chief Justice George. The reason that the State Bar emphasizes civil attorneys is financial. The State Bar zealously enforces attorney trust accounts because the State Bar is the their hidden beneficiary: it receives the interest on most accounts, and the State Bar's authority to disburse these funds augments its power; any trust account violation, any instance of commingling in regular accounts, takes money at the State Bar's disposal. While the client suffers delay following misappropriation, the State Bar is the loser. Misappropriation and comingling are the State Bar staples and the trust accounts the glaring conflict of interest, but, recently, court-order violations have been prominent. To understand the change, more important than the rise and fall of Chief Trial Counsel Drexel in the California bar is the rise of Chief Justice George in the California courts.

The problem with the district-attorney prosecutions isn't inherent wrongfulness. Despite the hypocrisy of the State Bar's prosecuting other prosecutors for withholding exculpatory evidence, district attorneys who withhold evidence and who violate court orders by lying deserve disbarment — harsher discipline than imposed. The problem is the tardiness of these prosecutions, taking place under the State Bar's unlimited statute of limitations for cases the Bar claims to initiate. The lateness shows the prosecutions were at the behest of judges who continued to be dissatisfied with these officers of the court after the ordinary statute of limitations expired. The state-bar-establishment's loyalist defense wing, not the DAs, made the effective response to the district-attorney prosecutions — confirmed by the direction of a phone call preceding the ouster: district attorney to influential bar-defense-counsel Margolis.

Installment 64A. Exculpation by Time Bar (Second in Philip E. Kay Series)

The State Bar can prosecute a lawyer whenever it pleases, as though the smallest State Bar violation is tantamount to a capital offense, where no limitations period applies because of the deed's heinousness. While the State Bar's jurisdiction for any violation extends to the length of an attorney's career, an ordinary complainant, such as a consumer of legal services, is not similarly entitled. The statute of limitations for a complaint initiated by ordinary citizens — still too long — is five years from the attorney's misdeed. (Rules Proc. State Bar, rule 51(e).)

Those empowered to reach decades into the past to punish abominations, such as regards who a lawyer shares fees with, include — in addition to the State Bar itself — judges. Not so under law, but one practical truth the Kay case establishes is judges count among those entitled to bring tardy charges; only they don't do it openly. The State Bar's freedom from limitation by any time bar serves as a cover for judges, who might want to avoid turmoil until they're, say, securely ensconced in federal court.

Philip Kay may be entitled to dismissal on statute-of-limitations grounds because most of the charges describe events more than five years old, but the State Bar made a secret of complaining-witness Judge Anello, now on the federal bench, and it denied that any complainant had been involved in charging Kay. The Bar claimed the action was completely Bar initiated, but recently unsealed documents show the State Bar was lying, and it knew itself engaged in misconduct throughout its collaboration with Judge Anello.

The documents were unsealed from an employment-related suit by a former deputy trial counsel (Konig). Konig now says he'll testify that ex parte communication is rife between State Bar trial counsel and judges, but, by the contents of the unsealed documents, he differed from his superiors by being even more of a toady. Supervisory admonitions to Konig show what the State Bar tried to conceal, such as:

You are creating all types of potential pratfalls to him [Judge Anello] being a successful witness in the proceedings by involving him in your charging decisions, etc. - Lawrence J. Dal Cerro (Assistant Chief Trial Counsel), quoted in Kay/Dalton Supplemental Motion to Dismiss (filed April 24, 2009).

Meanwhile, Konig laid bare the obsequiousness of the State Bar to judges, unfortunately, by example:

Judge Anello turned to us for help and has been extremely patient and understanding with the delays which are difficult to justify. The longer we continue to delay, the more disgruntled and less committed Judge Anello becomes.

The State Bar still denies Judge Anello was a complaining witness, and it argues that, since he wasn't, the Bar withheld nothing exculpatory from Kay. As the e-mail to Konig above shows, the State Bar was trying to hide Judge Anello's initial involvement and believed, unlike Konig, that it had to limit that involvement, but evidence doesn't have to be certain in its import to impose a duty to turn it over. At the least Kay was entitled to explore the State Bar's embroilment with Judge Anello.

The State Bar claims that Kay hasn't shown the withheld information's materiality, but what would make a matter withheld immaterial to a State Bar investigation, when nobody can call the information trivial? Withheld information in a criminal trial is material when it might persuade the jury to acquit or punish less severely. (Silva v. Brown (9th Cir. 2005) 416 F.3d 980, 985.) Kay's favorable options before the State Bar Court include not only acquittal but also dismissal in the interest in justice, and he is entitled to due process in pursuit of either objective. The statute-of-limitations issue goes to acquittal; Judge Anello's involvement otherwise goes to dismissal in justice's interest. What injustices might Kay have discovered if able to focus timely discovery on Judge Anello's embroilment, the Bar's motives for kowtowing to him, and his motives for delay? In a State Bar case the potential repercussions for justice's pursuit make any major revelation presumptively material.