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.