kanBARoo Court. Interlude 6. Making a federal case of it

My case, based on indisputable allegations of prosecutorial misconduct, proves due-process challenge strategies in disbarment cases shouldn't culminate in the California Supreme Court or below. My case tested and refuted the only theory on offer, alternative to bias, to explain the Supreme Court's post-1991 State Bar abstention. My theory said fundamental legal challenges seldom occurred in State Bar cases because the respondent's cost, incurred to avoid waiver — "involuntary enrollment inactive" — is too high.

I learn, as I get customers often owning greater working knowledge of the system than I, the causal picture is more complex. The determiner of State Bar Court decisions, when it wants to be, is the Board of Governors, the partly politically appointed, partly elected body that controls the State Bar. The incompetence of State Bar defense counsel also has an extra-legal complication, in a shadow organization of former State Bar trial counsel, an organization bestowed with a monopoly over striking deals, each sold at the going rate of a $50 thousand to $100 thousand in attorney's fee. These shadow-group State Bar defense attorneys, my sources tell me, compensate "referring" State Bar counsel with expensive gifts.

Despite the failure of a California Supreme Court strategy for fundamental legal attack, I remain convinced that only a fundamental attack can force dismissal in a disbarment case. The remaining realistic possibility for fundamental disbarment cases is attacking the U.S. Constitutional invalidity of parts of the State Bar Act in federal district court. A federal district court perspective depends on attributing statutory origin to one of the State Bar Court's systemic abuses. Informed customers say these abuses include, in addition to the State Bar's asserting monopoly power over defense counsel: pursuing charges the State Bar Investigator admits the State Bar knows are groundless; willfully withholding exculpatory evidence from in pro per respondents; and applying unlawful conditions, such as restricting potential counsel, to releasing exculpatory evidence. My case and experience adds others, such as deflecting or destroying court documents, proof of service fraud, and extortionate resignation demands.

My petition for rehearing offers no hope of resuscitating a California strategy. One reason, the petition's chances are slender at best. Why even slender? Because only the petition for rehearing contains a reply to a State Bar opposition. The State Bar troubled itself to avoid reply to its opposition to my petition for writ of review. Neither could I reply to the State Bar's opposition to my motion to strike, Rules of Court not permitting. When a court pays attention according to its preferences and acts according to its habits, a reply, as contained in my petition for rehearing, is the most important document. But if the Supreme Court were to grant my petition for rehearing, the court still had acted with such a degree of negligence that reliance on that court cannot ground a sound perspective. Reckless rubber-stamping seems the only explanation for apparent Supreme Court abstention, other than explaining it as invoking a surreptitious non-rebuttable presumption favoring the State Bar. My petition for rehearing in the California Supreme Court, consequently, doesn't even potentially rehabilitate the California high court as the target legal arbiter.

I am soliciting reports of State Bar prosecutorial misconduct, to help understand the State Bar's systemic due process violations. This information will help some of my customers and potentially an unknown number of California attorneys. Correspondents should feel free to e-mail reports anonymously.

kanBARoo Court. 30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty

Incompetent administration of law is oppressive in itself, as bureaucratic reflex replaces legal reasoning, but usually the oppression turns corrupt. In my case, the prosecutrix resorted to fraud on the court by pilfering documents submitted for filing. Thus, a second way incompetence breeds oppression occurs because of the inability of the incompetent to defend their acts honestly. A third way is that incompetence limits the reasons for eschewing oppressive or corrupt practices. It matters little whether one acts for good or bad reasons, if the results are wrong in either instance. A fourth way, their sole means to career advancement, the incompetent curry favor.

I started this blog, subtitled "How Legal Incompetence Engenders Oppression," because my case illustrated in pure form the most generic variant of legal oppression, bureaucratic reflex. Because of the case's direction, these Installments have digressed into the second route from incompetence to oppression, the prosecutrix's inability to win cases honestly, and, somewhat the third, in the court's indifference to the prosecutrix's misconduct. I have traveled the fourth, financially self-aggrandizing corruption, only briefly here. While there are pure cases of bureaucratic reflex—mine was at its inception—there are no pure cases of juridical corruption by currying favor for material reward because such corruption requires generalized incompetence, an environment unable to rebut error.

An all-sided view of incompetence and oppression must take account of scenarios where greed joins ineptitude in the engenderment. The Richard Fine disbarment is such a case. (See http://tinyurl.com/38ek9h) Attorney Richard I. Fine has practiced for some 40 years, gaining a reputation for successfully litigating citizen actions against government entities. His career trajectory eventually led to collision with the judicial system itself when he demanded the disqualification of judges in citizen litigation against the County of Los Angeles, based on the judges’ accepting payment from the County. Fine contends that the gratuitous payment of a $40,000 annual cash benefit by the County violated the California Constitution, which states that judges shall be paid by the State exclusively, and he contends the payments amount to a bribe. Fine repeatedly moved to disqualify judicial officers in actions against the County and eventually sued the judges personally, a procedure permitted for personal wrongdoing. At least one of the judicial officers filed a complaint with the State Bar, and the complaint resulted in the Hearing Department recommending disbarment. Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims happened, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done.

The State Bar Court doesn't ordinarily disbar without a showing of greed or dishonesty. Judge Honn needed allegations of moral turpitude, and such allegations the good judge did propound. Judge Honn accused Fine of making frivolous motions out of corrupt motive, the corrupt motive implying moral turpitude. Even if the court could justify discipline for good-faith motions the court considered frivolous, it remains hard to see what Fine's corrupt motive might be. Allegations of greed — the substance of true moral turpitude — are absent from the charges and Judge Honn's opinion. The moral turpitude may be invisible, but Judge Honn is not one deterred by implausibility. According to Judge Honn's opinion, the corrupt motive served by Fine's allegedly frivolous filings was to coerce the judges, and failing that, to wreak revenge!

Judge Honn does not clarify how he surmised Fine's motives. The State Bar Court recommended Fine's disbarment because he is a "legal bully," obviously the tenor of the offended judges' complaints. Some judges are so accustomed to lawyers cowering in their courtrooms that they might contrast any zeal as bullying, but, as to actual bullying, a barrage of frivolous motions is no way to bully a judge. And where is the revenge, when the judge wins, the petitioner is sanctioned, held in contempt, and serves, as did Fine, three days in jail? Corrupt motive in the Fine case is a senseless conclusion without evidence in the face of a far more plausible explanation of Fine's incessant motions. When the judges showed new biases, Fine had to file motions demanding disqualification or risk waiving the issue. Fine perceives a mass-conspiratorial fraud on the court, not an everyday legal situation. Whatever the merits of his position, this is not a State Bar matter.

In the next Installment, you can learn how the Fine Hearing Department failed even to establish the alleged facts on which it dwelled and relied.

kanBARoo Court. 19th Installment. Precedent, Waiver, and Legal Strategy: The Office of the Chief Trial Counsel Goes Berserk

California State Bar Court respondents must be especially careful of the intra-case precedents they set, especially waivers, as a respondent can reserve fewer rights against waiver than a criminal or even civil defendant. A criminal defendant's protections are well known, including the exclusion of probative evidence unlawfully obtained. The criminal defendant doesn't waive evidentiary objections by proceeding. None of these rights is afforded the State Bar respondent. Even the civil defendant comes out ahead of the Bar respondent with respect to one crucial difference, which magnifies the likelihood of inadvertent waiver. Although a civil plaintiff can modify a complaint by amendment, 1) the lateness must be excused; and 2) the amendment must not change the cause of action's basic nature. Neither of these protections is available in the State Bar Court. The notice can be changed at any time, even if the reasonably available evidence would have allowed earlier pleading; and no limitation applies to fundamentally changing the charges. If respondent proceeds based on a defective notice of disciplinary charges, any inculpating information gathered under that defective document’s banner retains its full force, regardless of the notice's fate.

The strategic implication, invariably missed by the State Bar establishment defense attorneys, is that failing to assert crucial procedural rights whenever tested loses them. By corollary, I will not answer the notice of disciplinary conduct unless I have exhausted my options to challenge it. Since the Bar Court rules are vague, incomplete, unrefined, and untested, my points and authorities argue rule construction, sometimes reaching public policy. Last Friday provided another opportunity to implement this anti-waiver strategy when the prosecutrix filed a new (third) motion to enter default for failing to answer the notice of disciplinary charges, to which I will eschew filing an opposition. Any application or counterapplication to the court now risks mooting my request for an immediate stay and waiving my objections that the clerk’s office has become unreliable. Since the clerk’s office is unreliable, any filing introduces an uncertainty for me, a litigation burden that no duty requires carrying. Refusal to accelerate the proceedings artificially by prematurely answering the notice of disciplinary charges also pressures the court to rule for a stay, to avoid its own befuddlement while it investigates the clerk's office.

The factors allowing me to prevail are 1) the fundamental strength of the pleading theory, forcing the Bar Court to treat it seriously; 2) the severe misconduct of the Office of the Chief Trial Counsel; and 3) taking advantage of the prosecutrx's misconduct, by consistent refusal to waive procedural flaws. The State Bar of late has followed the opposite course. More descriptively, the Bar has gone berserk. So far from consistency, it has now filed two incompatible motions: a motion to reconsider the denial of its motion for default and, before that, a new refiling of the original motion. An improper motion for reconsideration is ordinarily sanctionable, as is remaking a denied motion. While the law grants an over-used right to plead contradictory legal theories, it does not grant the right to proceed on a procedural contradiction. It is one or the other, a motion for reconsideration or a motion proper. The Office of the Chief Trial Counsel improperly burdens the court and opposing party with contradictory procedural forms. In my 11 years of practicing law and supplying legal theories to litigators, I have never before seen the procedural presumptuousness as involved in filing for reconsideration when the underlying motion is pending.

My novel strategy frightens the State Bar. The Bar's power to move for entry of default and involuntarily enroll Bar Members as inactive goes to the heart of its unfair advantage. Without it, the State Bar’s trial counsel would have to practice law, a prospect most alarming.

To understand this blog:

• Read Installments 1-3, 5, 7, and 14 first, in that order; then follow your interests; or
• Follow your interests, and make liberal use of hyperlinks.