Interlude 17. Statement by Philip E. Kay

Here's the latest development in the Philip E. Kay matter, covered extensively by kanBARoo court. The State Bar Court recommended yesterday a three-year suspension and five-year probationary period. Mr. Kay's State Bar status is unaffected until the California Supreme Court acts. kanBARoo court reserves analysis of the decision for another Installment, to present verbatim the response of Mr. Kay's office:

This decision admits it used default, as punishment, in violation of Business & Professions Code §6068(i), because I asserted constitutional and statutory rights of attorney client privilege and work product before answering questions, and demanded the right to have these issues heard and determined by an article VI court of general jurisdiction to determine whether the questions sought privileged information, pursuant to State Bar Rules. The State Bar Court did this knowingly to allow the Office of Chief Trial Counsel the ability to lie about what the Superior Court, Court of Appeal and Supreme Court found in their orders and opinions regarding these important civil rights cases.

In these matters, only after the trial judges were reversed on appeal and disqualified, pursuant to Code of Civil Procedure §§170, et seq., did they claim misconduct. So, either these judges lied in their orders denying misconduct, pursuant to Code of Civil Procedure §657(1) - “irregularities in the proceedings,” OR they lied in their testimony in the State Bar trial. This will create an uncertain and chilling effect by allowing unfit and disgruntled judges to lie about the record and impugn lawfully obtained civil rights verdicts, which have been upheld by the Court of Appeal and Supreme Court. The State Bar Court has allowed these disqualified judges to attack and undermine the very verdicts, which, they could not touch in the trial court under statutory and case law in California.

71st Installment. Plight of the Disciplined Attorney

The dominance of the state bars in legal ethics constricts the profession's ethical vision. State-bar moralism misdirects legal ethics toward enforcing compliance with judges and trivializes legal ethics with over-concern with negligent misappropriation. kanBARoo court will also explore the broader ethical horizons.

Ethical irresponsibility's first face is state-bar indifference to ethical problems bar prosecutors inflict on the profession; the California State Bar is heedless of the ethical morass suspensions produce after the attorney resumes practice. Attorneys disciplined for disobedience to court orders face bias from judges and harassment by opponents who bring the former respondent's State Bar record to the court's attention to support their sanctions' motions.

The State Bar has avoided noting the repercussions of its own operation, where an attorney's client can easily suffer prejudice or loss of confidence in attorney because of prejudice's scent. A client has little reason to anticipate that one consequence of attorney selection is judicial bias the legal apparatus blithely creates; a client legitimately expects that the legal system will strive to avoid prejudicing itself! Judges have so strong an interest in managing attorneys who have troubled the courts that protecting system integrity requires barring judges from accessing disciplinary information without cause.

Opposing a sanctions motion alleging a frivolous filing intended to harass is a serious matter for a previously disciplined attorney, as the former culpability will aggravate the offense. When the motion incorporates Bar-discipline history, the court should presume the mover's intent to threaten, this intent violating Rules of Professional Conduct, rule 5 – 100, barring Members from threatening State Bar action to secure civil-litigation ends:

A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

The State Bar would never consider applying rule 5 – 100 to punish harassing motions invoking prior-discipline records, and the litigation privilege precludes relief through civil procedure. (See Civ. Code, § 47.) The best immediate response to such harassment is to move for sanctions against the maker of the sanctions motion under the same code section. (See Code Civ. Proc., § 128.7.)

70th Installment. Mark E. Brennan, Part 3: Sentencing

Third in Mark Brennan series

For lawfully hijacking the respect the jury ordinarily reserves for the judge, the Colorado Supreme Court suspended Attorney Mark E. Brennan for a year and a day, announcing to trial attorneys in Colorado and beyond: exercise your professional judgment about how much deference your client's interests allow a biased judge, and you risk not only the reasonably contemplated mistrial and fine for contempt but your livelihood. The court is unembarrassed in signaling its solidarity with Judge Blackburn for the humiliation he suffered in his own courtroom; summarizing the case, the court admits it punishes Brennan for his supposed bad manners (his "impertinence"):

Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.

The court flaunts its vindictive motives yet pretends to apply Colorado ethical standards against disrupting a tribunal and engaging in conduct prejudicial to the administration of justice. Judge Blackburn had admitted the record doesn't support his conclusions, and the same holds for the ethics court, allowing the verdict to avenge Brennan's "impertinence," instead of reflecting the evidence: "Simply recounting Brennan's myriad and varied transgressions does not adequately capture the pervasiveness and the magnitude of his prejudicial behavior," Judge Blackburn had written.

Mark Brennan did what any trial attorney must try to do when confronting a trial judge biased against his client yet acting within his discretion: he replaced the judge at the pinnacle of the jury's respect. The maneuver's difficulty is attested by the contempt citation Brennan earned in its execution, but the possibility of this maneuver's success preconditions a real jury trial. Standing for prohibiting success in this subtle encouragement to a jury's moral mutiny, officer-of-the-court jurisprudence would guarantee the judge his respect by right, when the law only gives the judge every procedural advantage to maintain it.

Brennan tried to introduce his deposition of the jury foreman as evidence in the discipline case, but the court didn't allow it; Brennan's success was his real transgression. The tenor of the jury-foreman's exculpation:

You were absolutely polite. You tried your best. I know you did. You could tell. The other jurors could tell that you did. You didn't disrupt the trial in our hearing... ¶ But as far as the jury impression, no, it was a clash of styles. You were not impolite. You were an absolute gentleman. (Dillingham Deposition, January 2009, 54: 6 -- 14.)

Brennan had won over this jury, despite the court's bias. When the jury foreman heard of the original verdict's partial revocation, she perceived it as "an attack on me, and … an attack on the jury... [A]n attack on a jury that he portrayed as so ignorant and so naive that we could not see through the BS that was going on to get to the question ..." The pedestal where jurors put the judge, which courtroom procedure takes such pains to construct and repair, was leveled: "I would like to sue for libel. ... This is a judge that I told everybody I met I thought was the epitome of what a good judge should be.... It was Alice down the rabbit hole." (21: 7 -- 12.)

Courtroom justice involves delicate balances, and among the balanced factors is the right of an attorney to try to turn the jury's respect away from a biased judge. Officer-of-the-court jurisprudence, enforced by the state bars, is an aberration threatening to become the rule which emasculates the jury trial.

Interlude 16. The Ronald N. Gottschalk Matter: State Bar Incompetence or Collusion

In the 2^nd Installment I opined that the State Bar's incompetence overshadowed even its malice:

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.

kanBARoo court focuses on wrongful prosecution rather failure to prosecute. We shouldn't encourage the State Bar in any prosecutions because its integrity and competence can't be vouchsafed, and even the most culpable deserve better; but perspective requires recognizing the laxity interpenetrating harshness in a broad picture of incompetence. A particularly troubling laxity ramification is the possibility that the State Bar will delay prosecution of some of the most corrupt attorneys as remuneration for informing on other respondents.

Case in point the Ronald Norton Gottschalk case. In Interlude 8 I warned the public about this attorney, whom I termed a "legal predator," and I also noted that he eagerly played State Bar stooge when he threatened kanBARoo court with a RICO suit. Gottschalk was recently arrested on embezzlement charges. While his guilt remains for proof in court, the standard of proof for enrolling an attorney inactive (an administrative suspension to avert harm to the public) is far lower than proof, and the Bar is avid in its routine imposition of these suspensions for mere procedural reasons. Yet the November 2009 California Bar Journal (http://tinyurl.com/kzqxroy) contains this amazing statement, following Gottschalk's arrest, from Gottschalk's State Bar prosecutor, Paul O'Brien:

We believe public protection demands that Gottschalk be enrolled "not entitled to practice" at the earliest possible moment.

O'Brien went on to praise Investigator John Noonen for his "dogged pursuit of the case."

These  incompetent, self-congratulatory State Bar prosecutors and cops remind of nothing more than former President Bush when he commented on the "heck of a job" his staff had performed after Hurricane Katrina. The DA has charged Gottschalk with hard embezzlement of more than $350,000. Since the standard of proof for involuntary enrollment inactive is far too low, even a State Bar prosecutor could marshal the incriminating facts:

The board may order the involuntary inactive enrollment of at attorney upon a finding that the attorney's conduct poses a substantial threat of harm to the interests of the attorney's clients or to the public. (Bus. & Prof. Code § 6007, subd. (c)(1).)

The standard of proof is simple preponderance of evidence to establish past wrongdoing and, effectively, a beyond-reasonable-doubt standard for the attorney to rebut the presumption that wrongdoing will continue:

Where the evidence establishes a pattern of behavior, including acts likely to cause substantial harm, the burden of proof shall shift to the attorney to show that there is no reasonable likelihood that the harm will reoccur or continue. (Bus. & Prof. Code § 6007, subd. (c)(2)(B).)

The State Bar allowed Gottschalk to practice until his year-later arrest, an outcome bespeaking the State Bar's incompetence or collusion.

Interlude 15A. Axe the State Bar to Save the Profession

Every act of oppression or hypocrisy creates an equal and opposite reaction. The California State Bar's abuse of power and general ethical phoniness has helped demagogues further attack the legal profession's independence. Hitching its fate to a corrupt police agency, the legal profession has increased its vulnerability to denigration and imposition by the political powers

Governor Schwarzenegger's and Chief Justice George's recriminations against the Commission for Judicial Nominees Evaluation threaten lawyers' right to an independent professional viewpoint and show how independence is further threatened as long as the State Bar is professional expression's vehicle. Schwarzenegger, using a Court of Appeal judgeship as but another patronage award, nominated former State Senator Chuck Poochigian for the California Court of Appeal. The Commission for Judicial Nominees Evaluation, appointed by the State Bar's Board of Governors to conduct confidential interviews to assist in the evaluation of judge appointments, gave Poochigian its lowest rating, "Not Qualified," accurately describing Poochigian. Poochigian has no experience serving as a neutral arbiter, instead having specialized in advising politicians on further politicizing judicial appointments. According to Commission standards, Court of Appeal candidates are expected to have the qualities of collegiality, writing ability, and scholarship. Poochigian has never demonstrated scholarly capacities.

When Schwarzenegger vetoed the State Bar's appropriations, he also complained about the impartiality of the Commission for Judicial Nominees Evaluation. Schwarzenegger is not obligated to follow the recommendations, but he seeks to use budgetary threats to pressure the profession to conform politically, to pretend that legal scholarship and judicial temperament are irrelevant to Court of Appeal appointments and, if it suits the governor's purposes, any politician with a law degree merits judicial appointment. Chief Justice Ronald George chimed in his support, even though the Commission reports to neither the Chief Justice nor the Governor.

A presiding Court of Appeal judge conveyed a similarly threatening message when he tried to humble the Commission for Judicial Nominees Evaluation. Justice J. Anthony Kline admonished Jonathan Wolff, chair of the Commission after it rated nominee Kathleen Banke as merely "Qualified." Justice Kline in passing on Banke's nomination characterized the Commission's opinion of Banke as "bull crap." To those who value the independence of the legal profession, these examples of overreaching by the Governor and the judges prove that the profession's independence is at odds with the profession's subordination to the official state-bar police agency. If the State Bar is allowed to limp on, no doubt the politicians' squelching of independent professional judgment will succeed. The politicians and the state will compel the profession to proclaim every Poochigian a competent judge on the say so of the governor and Chief Justice.

Hold Schwarzenegger to axing the Bar because, otherwise, the likes of Schwarzenegger and George will control the profession.

Interlude 15. Disbarring the State Bar

In an astonishing but deserved worsening of fortunes for the California State Bar, Governor Arnold Schwarzenegger vetoed the State Bar appropriations measure. (See http://tinyurl.com/yla9zlo.) Without funding the State Bar is dead, one of the most favorable potential outcomes. Schwarzenegger vaguely demanded reforms, his motives no doubt predominantly fiscal, but Schwarzenegger should be held to his commitment. Since no serious reforms will be forthcoming, Schwarzenegger should axe the State Bar, which is so broken it does much more harm than good.

The veto confirms that the political establishment repudiated Drexel's extremism by removing him, and it continues to punish this arrogant, out-of-control police agency. The themes Schwarzenegger sounded show that critics' attacks have gained foothold in public-opinion's mainstream. Schwarzenegger mainly objected that the State Bar has not proven itself above reproach, most blatantly in the Sharon Elyce Pearl case, where a clerk embezzled 6.75-hundred-thousand dollars over eight years while the State Bar recklessly disregarded its duty to secure entrusted funds. Publicizing the Office of Chief Trial Counsel's statutory responsibility for the embezzled funds, kanBARoo court uniquely argued that the case exposed the State Bar's ethical hypocrisy.

69th Installment. What (the absence of) medical ethics can teach legal ethics

Medicine — which in California had its Drexel era back in 1991, inflicted by the Legislature — is ahead of law in the arbitrariness and malice of its policing mechanisms. The advanced morbidity of both medical ethics and its supposed enforcement holds lessons for the direction of legal ethics.

After the peer-review "reforms" of the late 80s and early 90s, peer-review process has increasingly dominated physician discipline. The "reforms" provide nearly absolute immunity for those accusing physicians and those adjudicating physicians' alleged infractions. Peer review can deny hospital privileges, often tantamount to professional annihilation because of the tight connections between the public and private discipline bodies.

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but not specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.

(http://tinyurl.com/y8nyoh6.)

The immunity of all involved in an accusatory process amounting to a trial unconstrained by any law of evidence has made the peer-review process a breeding ground for anticompetitive conspiracies and, particularly, the persecution of doctors who advocate for patients or retain a vestigial desire to practice competent medicine. The abuses against doctors with integrity have earned the designation "the disruptive doctor doctrine," under which whistleblowers who complain about the quality of care are tried on trumped up charges.

In my experience, it is never those physicians who regularly place patients at risk with questionable medical practices or outright negligence that are the ones who raise concerns about patient care. It is those hotheaded physicians who are passionate about patient care and the quality of medical treatment who raise hell, take their grievances to hospital administrations, and demand change. And unless these same physicians are economically valuable to the hospital and/or have considerable political clout then they might as well kiss their careers goodbye.

(C. Rangel, M.D. at http://tinyurl.com/y98bc34.)

Corrupt medical-ethics' policing feeds from the initially low level of medical ethics, itself in part product of the number of students pursuing medical study hoping for enrichment, in part product of policing that was always guild oriented and never oriented to ethics based on patient loyalty — as many longstanding practices indicate; practical medical ethics accepts that physicians will shirk basic duties to their patients when in the physicians' interests. Practicing "defensive medicine," for example, has long been acceptable, even mandatory. In countenancing defensive medicine — certainly never disciplining it — physicians ratify methods that don't benefit, indeed, even harm the patient, at least causing inconvenience, often worse. The "defensive" physician is disloyal to his patient and probably lies to the patient about the tests' medical necessity. Spacing office visits for the sake of revenue collection — because, for some anachronistic reason, physician fees are tied to patient contact — is another professionally accepted practice that is disloyal to the patient. The patient is, again as a rule, lied to about the medical necessity of the contact but, increasingly, setting office visits for billing purposes is cynically accepted as realistic. ("Crackpot realism," in C. Wright Mills's phrase.) Looked at from an objective ethical standpoint — without succumbing to the root vice of community standards for a scientific activity — one should say that any doctor doing any of these things should be hauled before a medical board for moral turpitude in medical practice — if only medical ethics were about patients' interests or the doctor's fundamental honesty in patient dealings.

Deterioration in medical ethics accelerates. Most stunning have been the revelations that psychiatric pharmaceuticals are usually validated only by studies the drug companies finance, design, and control. This corruption implicates renowned professors at the nation's foremost teaching hospitals and medical schools. The defective policing of medical ethics has stemmed from hysterical reaction to real gaping defects in physicians' ethics but more directly from the refusal of physicians on peer-review panels to take ethical responsibility for patient welfare, the universal acceptance that peer-review panels will provide competent and sincere review only if the reviewers have immunity from any resulting civil litigation. The objective ethicist may ask why should physicians feel free to disregard their duties to patients and their duties of truthfulness in matters concerning patient welfare because of the possibility they may be sued for defamation? An incredible ethical laxity; if physicians participating on a peer-review panel lie about their conclusions to avoid possible litigation, this self-serving conduct is an ethical violation by any standard true to ethics' roots in loyalty to patient and honesty in matters affecting the patient's welfare.

The decline of medical ethics consists of disregard for loyalty to patient and honesty in matters involving patient welfare. The deterioration involves putting economic self-interest and institutional interest above patient loyalty and truthfulness, an emphasis not deflected by increasingly harsh physician discipline; indeed, furthered by discipline for the wrong offenses. Doctors are increasingly disciplined for failure unconnected with loyalty or truthfulness, the twin pillars of genuine professional ethics: in one typical instance a doctor was disciplined for failure to report what the authorities believed was child abuse of a patient's neighbor. (See http://tinyurl.com/y8nyoh6, supra.) Harsh and arbitrary discipline meted out by the peer-review panels and medical boards reinforces physicians' disloyalty to patients by punishing doctors for failures of dual loyalty to third parties, including state authorities. The law analogy is disciplining attorneys because their conduct successfully advances their clients' interests: discipline to uphold the authority of judges and respect for bar.

68th Installment. No to Victim-Impact Statements!

Confirming kanBARoo court's assessment that moralism lies at the heart of what ails the State Bar establishment, an influential committee of the Board of Governors recommends that the California State Bar allow prosecutors to use victim-impact statements in discipline proceedings. (See http://tinyurl.com/mjftvr.) Victim-impact statements are emotional statements, often diatribes, about how culpable acts affected the victim and family. These histrionics have wheedled into the criminal justice system under the system's logic-chopping formalism, which permits prosecutors to do in sentencing what's forbidden for convicting. In trials for noncapital crimes, every state allows victim-impact statements, their use highly contentious only in murder trials, where 38 states allow them. The U.S. Supreme Court has considered the place of victim-impact statements in capital cases, originally holding victim statements unconstitutional under the 8th Amendment proportionality doctrine because punishment inspired by reports of specific victim harm breaks the link between seriousness of offense and punishment. Then, abrogating stare decisis, the court overturned the holding it announced in Booth v. Maryland (1987) 482 U.S. 496 and upheld in South Carolina v. Gathers (1989) 490 U.S. 805 by holding in Payne v. Tennessee (1991) 501 U.S. 808 that the 8th Amendment doesn't bar victim statements in capital cases. Regardless, as almost all legal scholars agree, victim-impact statements have no place in the criminal courtroom; they have even less place in attorney-discipline proceedings.

The most important reason victim-impact statements are oppressive in any criminal case is that they are irrelevant to sentencing. Victim statements are irrelevant in criminal proceedings because criminal guilt depends on public policies of retribution. (See Greenberg, J.D. Is Payne Defensible?: The Constitutionality of Admitting Victim-Impact Evidence at Capital Sentencing Hearings (2000) 75 Ind. L.J. 1349, 1370.) The degree of culpability of an act for retributive purposes shouldn't depend on adventitious happenings; it depends on the inherent wrongfulness of the act as intended by the person committing it. A crime shouldn't be punished for what the perpetrator never intended, even apart from the injustice of punishing based on inflammatory portrayal of those unforeseen consequences; whereas, ordinary evidence establishes the criminal act's specific foreseeable consequences, and a type of crime's foreseeable consequences forms the basis for the statutory level of punishment.

The main argument advocates propose for victim-impact statements is that the right of defendants to argue mitigating circumstances should be balanced by commentary from the victim's point of view. Use of mitigating circumstances in criminal sentencing is a tarnished process, often serving as an inverted means to impose de facto aggravations on defendants whose unmitigated sentences are unduly harsh, but when mitigating factors refer to the defendant's motivation for crime, they target a defendant's blameworthiness, the designated inquiry, while impact statements divert attention to the irrelevant.

While victim-impact statements are oppressive in criminal proceedings — consider their role in the outlandish sentencing of Bernie Madoff — they lack even colorable justification in State Bar discipline. All reasons for admitting victim statements in criminal matters are based on the retributive function of punishment. (See Greenberg, supra.) To admit victim evidence, the court conceives the blameworthiness of the crime as including consequences unknown to the defendant, for otherwise proof would lie in defendant intent, not in the criminal act's consequences. Victim statements express an expanded moralistic view of the law, oppressive in criminal proceedings but incongruous in State Bar proceedings, which are public protective rather than retributive.

The State Bar defense establishment has centered its opposition on obtaining the right to cross-examine victims. Cross-examination of victims doesn't usually moderate the perniciousness of victim statements, since thorough cross-examination of victims on the harm suffered puts defendants in the bad light of attacking the persons they are charged with harming.

(See also companion Juridical Coherence essay: 5.14 Checks and Balances at Trial)

67th Installment. Tactical Lessons of the Philip E. Kay Case

The Hearing Department entered Philip E. Kay's default when Kay refused to retake the stand after the Hearing Department judge not only denied objections on matters of privilege — such as the terms of his fee agreement with his former client Weeks — but also began entering his refusals to answer as affirmative inculpating responses. Kay filed a comprehensive petition for interlocutory review to oppose the California State Bar Court Hearing Department's entry of default. Kay's papers in opposition included his promise to resume testifying if the court set the default aside. Without explanation, the Review Department of the State Bar Court recently denied the petition.

Assessing tactics is part of educating respondents in how to fight the State Bar, since lawyers don't usually understand the different tactical terrain in State Bar Court, which, instead of treating them legally, treats all its cases with political animus. Respondents can achieve their legal goals, if at all, only by setting forth the starkest facts and crispest arguments on appeal. Often, a respondent may only hope to make the clearest demonstration of judicial error for the public's edification. In my case, I think that the trial court stood in a weaker position due to its failure to protect the most basic due-process rights than due to its proceeding on a statutorily defective Notice of Disciplinary Charges. Since the adequacy of the NDC is arguable and Melanie J. Lawrence's malfeasance isn't, I opted to rest my case on the malfeasance, despite the cost of default.

I apply the same criterion of outcome clarity to Kay's tactical choices to reach a different conclusion about his default; but note, Kay's tactics should be considered, as the economists say, ex ante: from the perspective of knowledge then available. While we know Kay's default was entered, we don't know that Kay could have known the same or, more importantly, that any attorney any time would suffer the same injustice. We don't know that Kay's attempt to come before an Article 6 court was doomed from the start mainly because we don't know all the political influences at play. Kay's mistake wasn't failing to anticipate entry of default; if an Article 6 court was a probable source of relief, Kay's attempt to reach one wasn't irrational, since success wasn't foreclosed.

Kay's mistake, in my view, was his confidence in the Article 6 courts. The Richard I. Fine case, my case — even the inception of Kay's case — show that the courts of record will not refuse the State Bar. Superior court judges initiated the Fine and Kay cases. In Fine's, Superior Court Judge Yaffe took off from where the State Bar left the matter, and Fine remains in jail, there for more than a half year. In my case, the Supreme Court silently refused to address proof that the Office of the Chief Trial Counsel and a Review Department clerk tampered with the record to cause entry of default.

After putting aside reliance on the Article 6 courts, we still haven't completely answered the tactical question. We have to consider whether Kay leaves a better record by suffering the unlawful entry of default or suffering a finding of culpability unsupported by the evidence. Kay's statute-of-limitations argument based on the Konig documents is highly persuasive; the argument based on the unlawful default is hard for many to understand: the absurdity of the Bar Court's self-proclaimed inherent powers is hidden by the California Supreme Court's vague language from the days when it still pretended to perform its State Bar supervisory duties. (See, for example, Jones v. State Bar (1989) 49 Cal.3d 273, 287 [discretion of hearing referee to exercise "reasonable control over the proceedings ..."].) For impact, Kay should prefer a finding of culpability unsupported by the evidence to an unlawful entry of default.

Interlude 14. That Miscreant Bill Clinton

So an attorney disbarred for alleged dishonesty is trustworthy to represent the U.S. Government ("unofficially") in deals with a nuclear power, lives directly at stake. The public avoids deep confusion only by perceiving disbarment as an act of punishment, not mainly a judgment on character. (See reference to poll at http://tinyurl.com/ld5vl8.) The spectacle brings to fore a question kanBARoo court raised last year: Is Bill Clinton really unsuited to practice law because of (as we say in California) acts of moral turpitude? Or, as kanBARoo court argued, was the Clinton disbarment (technically a five-year suspension) the most dramatic example of state-bar-establishment overreaching, crossing the Supremacy Clause?

kanBARoo court discusses the Bill Clinton disbarment at:

• 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?
  
• 29A Installment. Why didn't Bill Clinton argue federal preemption?
  
• 32nd Installment. Disbarment of a President
  

(To defend Clinton against state-bar calumny is not to endorse his policies, such as his moralistic workfare measures.)

Interlude 13. A Tale of Two (or Three) Blogs

kanBARoo court reached the million mark yesterday. No, not a million subscribers, unfortunately. You reach this mark from the far side: kanBARoo court is now among the million top blogs if what's "top" depends on three-month traffic.

Two companies estimate the popularity of blogs. Alexa bases its estimates on a large (nonrandom) sample of readers; Google on the inbound connectedness with the rest of the Internet. The two measures correlate substantially, but kanBARoo court diverges between Alexa's traffic estimate and Google's link-based estimate, on which kanBARoo court scores 2 on Google's 0 to 9 logarithmic scale. One of my other blogs Disputed Issues, whose traffic rank (about 1.4 million) is significantly weaker than kanBARoo court's and whose Google page rank substantially stronger (4), shows a typical correspondence. Disputed Issues is a half year newer than kanBARoo court and contains half as many entries. (My third blog Juridical Coherence is too new for comparison.)

kanBARoo court may be unequaled in the disparity between its traffic rank and Google page rank, which affects priority in search-result placement. Maybe someone else will examine how Google's search monopoly and its rankings press toward ideologically conforming Internet networks. My interest is monopolization of legal-ethics' discussion and state-bar law by the state-bar establishment. Like many independent dissenters, I link outside my blogs judiciously, but when I do, the links most often point to opposed positions. The state-bar establishment blahgs — the absence of controversy makes them anything but interesting — intentionally avoid pointing to opposed positions or inimical institutions; they link as political tool. One establishmentarian blogger posted as much: "I am not going to link to his post, as that would give him Google juice." (See http://tinyurl.com/loxxgx.)

Contrast the lawblahgs with bloggers opposing the state bars. Whether primarily dedicated to freeing Richard I. Fine (see, for example, http://tinyurl.com/nqjptj), exposing biased judges (http://tinyurl.com/mu6e4h), or rectifying the Ramparts' victimizations (http://tinyurl.com/l59jqd), we seldom cite to each other or feature a blogroll advertising congenial blogs. We're obviously going to show more independence than the state-bar establishment and its cheerleaders, but we also have ideological and legal differences, even literary differences, we don't ignore.

The state-bar establishment, like an ordinary commercial monopolist, trades [links] as means to continue finding advantage in collusive combination. This is their right — although maybe not Google's to furnish the incentives fostering collusion — but the rarefied Internet is only a shadow of the world outside, where to marginalize opposition the state-bar establishment will use all means, including in California redoubling the calumny against state-bar respondents through an early-publications policy.

66A Installment. Officer-of-the-court jurisprudence

Second in the Mark Brennan Series

Judge Robert E. Blackburn's complaint in the Mark Brennan disbarment case permits a glance at the jurisprudence grounding judges who seek to impose state-bar discipline for ordinary trial conduct. Judge Blackburn approvingly quoted the Polansky court ("Complainant's Response to Respondent's Motion To Dismiss"):

Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means for achieving the court's ultimate goal, which is finding the truth.

(Polansky v. CNA Ins. Co. (1st Cir. 1988) 852 F.2d 626, 632.)

The Polansky court and Judge Blackburn express three opinions that are contrary to professional consensus: 1) A lawyer's primary responsibility is not to his client but to the court; 2) zealous advocacy is encouraged only as a means of reaching the court's goals; and 3) the court's ultimate goal is truth.

Usually, first-year torts classes dispose of the cartoonish view that the court's ultimate goal is truth. Many public-policy considerations having nothing to do with truth's pursuit drive civil procedure, but although the Polansky court and Judge Blackburn are outside the professional consensus, the consensus makes a dangerous concession in accepting that the adversarial element serves truth finding: truth emerging from conflict. Our legal system as a whole obviously doesn't subordinate all interests to truth finding, yet many lawyers believe adversarial procedures exist to promote truth. This view leads the consensus toward endorsing Polansky's conclusion, while rejecting its reasoning — leads to limiting legitimate adversarial conduct to what furthers truth finding; but truth finding isn't adversarial procedure's distinguishing function or its overarching purpose. In overall accuracy an inquisitorial system is inherently superior to an adversarial one: does anyone think that testimony from hired gun experts better informs a jury than neutral investigators chosen by an unbiased judge? A trade off of lower accuracy for less rights-violating injustice, adversarial procedure favors rights protection over truth finding. Rights protection, not truth finding, justifies adversarial process.

Judges who believe fealty to the court's truth-finding ideals outweighs loyalty to client will consider extraordinary loyalty as misconduct. These judges' naive moralism doesn't promote precision; the judge espousing an open-ended duty owed the court is subjective. A court holding an officer-of-the court jurisprudence will be dissatisfied for the same reason a client is unhappy: the lawyer's limited zeal for itself.

In contrast to the moralism of Judge Blackburn and the Polansky court, the Koufakis trial court (unfortunately reversed) took a sophisticated, nonmoralistic perspective in deciding an attorney's conduct didn't warrant a new trial. Pointing out that "wrenching little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial, and in my opinion there was not the prejudice [which the defendants] suggest," the judge further explained to the attorney moving for an order declaring mistrial:

Your style is entirely different from Mr. Berg's, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. ¶ Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. ¶ If you had mentioned the Mafia, then they would have taken you literally. ¶ Mr. Berg's mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. ¶ They simply didn't take this kind of analogy seriously. ¶ This is the kind of exaggeration that they had come to expect from a flamboyant individual.

(See Koufakis v. Carvel (2nd Cir. 1970) 425 F.2d 892, 901.)

The trial judge candidly admits he prefers the less flamboyant style — it's easier on the judge. When a less insightful or less honest judge replaces concrete legal reasoning with moralistic judgments, often they screen for the judge's prejudices.

Click for entire Mark Brennan series

Ten-Day Sale

I live in the high desert of California, where this time of year the temperature regularly climbs above 100 degrees. One seldom ventures outside in this weather, leaving abundant time for work. Seeking more work to occupy more time, I'm declaring a ten-day sale on legal-writing projects. This sale, ending after August 10, features a $50 per hour fee. For any state-bar or vexatious-litigation matters, the price is only $30 per hour.

66th Installment. Threat to advocacy from overdeterrence — The Mark Brennan case

First in Mark Brennan series
Judges who minimize law's adversarial element will use the state bar to punish successful attorneys. The judge and complainant in a Colorado case, similar to the Kay case in California, exposed the jurisprudence that underpins disciplining for zeal. This first Installment in the Mark Brennan series sets out the case background.

Attorney Mark Brennan seemingly won his client a $1.2 million age-discrimination award against his employer the City and County of Denver, but Judge Blackburn declared a mistrial based on Brennan's allegedly prejudicial misconduct, mostly speaking objections and the like. A $850,000 settlement ensued. The judge also complained against Brennan to the state bar. The case is similar to the Kay matter in California: 1) respondents had been successful in court; 2) respondents conflicted with a powerful embroiled judge, who caused the courts to treat the matter as political, instead of legal; 3) respondents had long, successful careers without prior discipline; 4) courts have denied respondents discovery and other evidentiary rights concerning bar deliberations; and 5) respondents received no final judgment against their conduct in the underlying case. (But the cases aren't identical. First, overt procedural irregularities are present in the Kay case because Kay was defaulted, Brennan wasn't. Second, the kinds of character attacks each faces is different, in that Kay has never been accused of violence; but the character attacks against Brennan, too, may be inaccurate.)

The Brennan prosecution admits that Brennan's specific acts don't constitute misconduct, but it argues that the totality of evidence proves it: even if the prosecutor can't articulate a definition, he knows misconduct when he sees it! Brennan's prosecution and Kay's portend that attorney-misconduct's vagueness will compound disbarment's ultimacy to overdeter, suppressing vigorous trial advocacy. Unsure of the line between aggressiveness and misconduct, advocates become obsequious, knowing a mistaken speech register risks their livelihoods. A hostile judge will crush a case, augmenting judicial power the hidden purpose of disbarring attorneys for trial misconduct when borderline misconduct non-normative only in amount is alleged. Attorneys gamble on distinctions and accept the reasonable risk of mistrial. Good trial attorneys readily adjust their behavior to new trial contingencies, but none will venture on the extraordinary risk of disbarment.

While the Brennan case lacks the Kay case's procedural infirmities, it contains an oddity. The judge declared a mistrial only after the jury rendered its verdict. The only new fact was how long the jury deliberated, three hours, for an eight-day trial. The judge implies the duration was excessively brief, but, while the law allows declaring a mistrial because the jury deliberated a disproportionately long time, Colorado's Supreme Court ridiculed declaring mistrial for brief deliberation. (Sepulveda v. People (Colo. 1961) 361 P.2d 625, 626.) Even if the judge can justify mistrial based on his mere change of mind, his close decision fails disbarment proceedings' clear-and-convincing-evidence test.

Next in Mark Brennan series: The jurisprudence of judicial vindictiveness

65th Installment. The state-bars’ public-protection myth & the misguided remedy of suspension

The state bars' official purpose centers on public protection, but the state bars' real purpose has always been punishment and deterrence. The mischaracterization serves both public-relations and legal purposes.

The public itself doesn't see state bars as functioning for protective purposes. A recent Los Angeles Times editorial expresses the common attitude of the public:

Whether Yoo or Bybee breached legal ethics in that way has been the subject of an investigation by the Justice Department's Office of Professional Responsibility, which can recommend discipline to state bar associations. That process, not a civil suit for damages, is the best way to hold lawyers accountable for malpractice.

http://tinyurl.com/mvyt4z

This is the widely accepted popular view: state-bar discipline holds lawyers accountable; but holding accountable isn't a public-protective function. Accountability is the essence of deterrence, the primary function of punishment, and a component policy behind civil-litigation procedures.

When state bars claim their purpose is public protection, the bars focus only on the severity of detriment, on which its opinions, as well as those of the courts of record, dwell. A punitive system should match severity of deterrent to offense's seriousness and inversely to probability of apprehension. A protective system, in contrast, should match preventive measures to likelihood of committing further harm. Neither courts nor legislatures analyze the class of disciplinary measures serving the screening function assigned to state-bar discipline: most notably, what role does graded discipline serve for a system supposedly protective? Punishment by degrees of severity suits a deterrent or retributive system, where punishment should fit the crime.

Suspensions play no rational role in a protective system because character defects aren't time limited. Courts surreptitiously slide into a deterrence-oriented mental set when they impose suspensions. Deterrence is secondarily protective, confusing the issue when the state bars insist they are not deterrence's instrumentalities. The public accepts punitive but unprotective disciplinary measures, such as suspensions, because of tacit recognition that civil litigation insufficiently deters.

Understanding that state bars provide a deterrent that the Legislature can't abolish without replacement is a first step both in compelling the state bars to stick to actual public protection and reforming the laws governing civil litigation so they deter attorney misconduct. Attorneys today are already subject to a few civil sanctions for technical misconduct. When an attorney improperly divides a fee, it is forfeit. That's enough deterrence to render the state bar rule against fee splitting — hardly an index of moral turpitude — unnecessary for deterrence's purposes. This law illustrates how to deter the range of technical misconduct falling short of moral turpitude: relieve the wrongdoer of his ill-gotten gains. The mechanism can be widely applied to the gamut of misconduct violating rules and statutes deemed administratively necessary for the profession. If the attorney, for example, engages in unlawful solicitation, allow the solicited party's refusal to pay attorney fees, enforceable in the civil action or in the underlying action. Wrongdoing not involving moral turpitude in the strict sense shouldn't concern the state bars, and moral turpitude should have only one disciplinary consequence, disbarment. Disbarment is the only disciplinary measure serving a strict screening function; limiting discipline to disbarment follows from limiting the state bars to the protective function they claim as exclusive domain.

The expressed policy of public protection, not the actual policy of deterrence and retribution, is the correct policy, but the public-relations myth of state-bar dedication to public protection forms the basis for denying state-bar respondents the protections favoring criminal defendants. Proof before state bars need not be beyond a reasonable doubt, and a jury doesn't find culpability. In state bar matters, proof is in principle by clear and convincing evidence; a respondent in reality is lucky if afforded a preponderance-of-evidence standard. Prosecutors decide that a case goes to trial, one sub-Article 6 judge decides the facts, and state-bar respondents can't plead self-incrimination when inculpating matter concerns only state-bar charges. These practices would never survive constitutional scrutiny if courts recognized that state bars mete out punishment.

64D Installment. Ha!Ha! The State Bar Court thinks it has inherent powers

(5^h in Philip E. Kay series)

The State Bar's justification for defaulting Philip E. Kay has evolved or rather devolved. The State Bar first argued that discovery procedures could do double duty at trial. Unable to support this argument to justify radical expansion of discovery's domain, the State Bar tried a different line: failing to appear at trial includes refusal to testify. Still without an argument to make respectable its self-serving deafness to all distinction, the State Bar's July 1 reply emphasizes yet another fantastical theory: the State Bar Court's "inherent powers" authorize striking Kay's answer.

Despite an extensive California case law on the inherent powers of courts, the State Bar quotes no California cases; introducing California law would make this argument's meritlessness too obvious, since under California law the inherent powers of the courts derive from Article VI, section 1 of California's constitution. (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267.) The constitution defines "courts of record": the superior courts, Court of Appeal, and the Supreme Court; as only Article VI courts of record have inherent powers, the State Bar Court has none. "[E]very court of record has powers requisite to its proper functioning as an independent constitutional department...," the Supreme Court repeatedly recites. (Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [emphasis added].) Inherent powers are specific to the courts of record because these powers are based on the separation of powers between governmental departments, a club the State Bar Court doesn't belong to. The State Bar Court has no judicial powers — hence, no inherent judicial powers — these vested in the courts of record.

The constitution vests judicial power in specific courts and denies judicial power to all other agencies. Many institutions nominally "courts" aren't courts for constitutional purposes. The Supreme Court resolved where the inherent powers of courts end when it held that striking an answer is an unconstitutional sanction without an order from and hearing before an Article 6 judge. (Summerville v. Kelliher (1904) 144 Cal. 155.) Commissioners, notaries, and other sub-Article 6 judicial officials, such as State Bar Court judges, could not thereafter constitutionally exercise any supposed inherent power.

The State Bar Court, an administrative arm of the California Supreme Court, doesn't inherit the Supreme Court's powers. The State Bar Court is a statutory creation, and statutes alone define its powers — none inherent.

Interlude 12. State-bar establishment: Pro bono for the banks

As the economic depression deepens so does political oppression, as the police are the instrument forcing an adverse orderliness on the enraged and impoverished. When banks today mount a collections' offensive against the public that financed their rescue, what role will lawyers play in helping the poor and indebted resist the onslaught? None if the state bars, specialized branches of the police-prosecutor apparatus, have their way. In three jurisdictions, the state bars have already disbarred or denied admission to lawyers for carrying excessive debt. For the state bars, indebtedness is moral turpitude!

In New York, appellate judges, who form part of that state's bar establishment, held Robert Bowman ineligible to obtain a law license for reason of moral character, that reason being specifically: "Applicant has not made any substantial payments on the loans. ... Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law." Bowman had incurred the typical huge debt to finance law school and then experienced medical adversity, impairing his ability to work and adding much more debt.

In another case, a Texas lawyer was disbarred for defaulting on his student loan; the court opined that Frank Santulli III's nonpayment showed his untrustworthiness to represent clients and raised the specter that "he will harm a client, obstruct administration of justice or violate the disciplinary rules." To make no mistake on where the bar stands on indebtedness, the Texas State Bar had conditioned Santulli's license on paying his debt. A news report informs that the Texas case isn't isolated: Minnesota had already disbarred an attorney for student-loan default.

Installment 64C. The State Bar Court gets even more illogical

(4^th in Philip E. Kay series)

The State Bar Court's Hearing Department has in fact narrowed — to a single issue of statutory interpretation — the issues on entering Kay's default and striking Kay's answer in reprisal for Kay's refusal to retake the witness stand. The State Bar claims entitlement under State Bar Rules of Procedure rule 201 to enter Kay's default for the refusal. Rule 201(b)(3) states:

If a respondent fails to appear as a party at the trial when that respondent's default had not previously been entered in the proceeding, then the Court shall order the Clerk to enter that respondent's default if the respondent has not appeared at trial.

The Order of June 17 encapsulates the State Bar's notion that testifying is part of "appearing" under rule 201:

Imposing sanctions for a party's failure to comply with a notice to appear at trial to testify is not a novel issue. ... Our rules of procedure therefore expressly provide for the imposition of sanctions for a party's failure to comply with a notice to attend trial to testify.

The narrow issue is: does a respondent fail to "appear at trial" when he refuses to retake the witness stand? Since this narrow issue has become dispositive, it deserves deep analysis, despite apparent triviality. I provide a skeletal textual analysis here.

Black's Law Dictionary's definition of "appearance" expands on the English dictionary definition, "coming formally before the court":

A coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court. The voluntary submission to the court's jurisdiction.

In civil actions the parties do not normally actually appear in person, but rather through their attorneys (who enter their appearance by filing written pleadings, or a formal written entry of appearance). Also, at many stages of criminal proceedings, particularly involving minor offenses, the defendant's attorney appears on his behalf.

Although "appearance" is used for a spectrum of acts from accepting the court's jurisdiction to coming to the courtroom on a specific matter, the common thread throughout these related meanings includes the notion an appearance is a kind of act that can ordinarily be performed equally by a party or his attorney; this meaning excludes testifying. Testifying isn't part of "appearing" because a party can ordinarily "appear" by counsel.

Usage in the State Bar's Rules of Procedure corresponds, as rule 210 shows:

The respondent has an obligation to appear at trial unless default has been entered and has not been vacated. The respondent may appear through counsel rather than in person, unless the respondent is properly served with a trial subpoena or notice to appear at trial.

An appearance is a kind of act that an attorney can perform for a party. Hence, "appearance" would change its meaning within the same set of rules if the term included testimony when applied to a party. Consider what happens if a party's attorney is called to testify in his client's case, and the attorney refuses. The client has appeared by attorney, and the client's appearance is unaffected by the attorney's refusal. Since the client can appear by attorney or in person, the party's refusal to testify doesn't negate his having appeared. Otherwise, "appear" would mean to attend and testify when applied to a party appearing in person and would mean merely to attend when applied to a party acting through attorney. Consistency requires construing "appearance" as merely attending. "Appearance" doesn't include testifying.

Philip Kay should prevail on his motion. Let's hope he raises the right arguments and doesn't bog down in discussion of legislative history. Sometimes we must move in a direction opposite to that suggested by Oliver Wendell Holmes Jr. when he remarked that experience plays a bigger role in law than logic. The key issue in the Kay matter has become one of textual interpretation, and logic will rule.

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 64B. State Bar tries to apply discovery procedure to trial testimony (Third in Philip E. Kay Series)

Count on the State Bar to do everything possible and some things impossible to take a default. In my case, Deputy Trial Counsel Melanie J. Lawrence failed twice before resorting to villainy, with help from both the Hearing and Review Departments, to get a terminating sanction. The Hearing Department defaulted Philip Kay when he refused to retake the stand after a week's misruling on his objections.

Kay argued that Rules of Procedure of the State Bar, rule 187, provided the State Bar's only remedy: referring the case to the superior court for contempt proceedings. The Bar Court held that it could use rule-186 procedures, which allow imposing terminating sanctions against discovery abuse. (See http://tinyurl.com/nax68j at p. 45, for both rules.) Rule 186 applies to discovery and allows application of the gamut of procedural sanctions, including termination. Rule 187 applies to "witnesses" and allows referral of nonappearing or uncooperative witnesses to superior court for contempt proceedings. Since rule 187 deals with witnesses, it covers both discovery and trial. If, as the Hearing Department contends, rule 186, despite saying otherwise, applies not only to discovery but also to trial, supporting that interpretation requires explaining why two separate rules exist to redress the same transgressions. On the Hearing Department's interpretation rule 186 and 187 collapse with the addition of contempt proceedings to the misnamed discovery sanctions in rule 186.

This uniquely broad concept of "discovery," that includes testimony at trial, is at odds with rule 186 itself. Rule 186, which authorizes using the Civil Discovery Act for discovery in Bar cases, incorporates the Civil Discovery Act into the Rules of Procedure of the State Bar, but rule 186 doesn't otherwise extend the Discovery Act's scope; the rule only limits its application in State Bar cases, prohibiting arrest and placing conditions on case dismissal. When the State Bar expands the scope of rule 186 to include trial, it goes beyond the underpinning Discovery Act. If section 186 applies to refusals to testify at trial, then the superior court using the Discovery Act, which rule 186 applies to Bar cases, could invoke the Act's sanction provisions to handle refusals to testify in a civil case. The State Bar argues respondent's refusal to testify justifies imposing discovery sanctions because the refusal thwarts the Bar's ability to prove its case in the same way as respondent's refusal to participate in discovery. The State Bar and the Bar Court should inquire why under the Rules of Civil Procedure the superior court couldn't invoke the Discovery Act to default a defendant who refuses to testify in a civil case.

Why then the policy distinction between refusal to testify at deposition and trial, only the first engaging the Discovery Act? During discovery either party's refusal to cooperate prevents the opposed party from building a case, but at trial the parties' positions are no longer analogous. If the plaintiff or petitioner takes the case to trial, that party presumably has sufficient evidence to prove the case. (See Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 714 [public policy disapproves of relieving plaintiff from meeting his burden of proof by defaulting defendant at trial].) The State Bar's need for Kay's extended trial testimony demonstrates the State Bar knowingly took the case against Kay to trial lacking the wherewithal to prove it.

Interlude 10. California State Bar Decapitated

The State Bar board of governors fired Chief Trial Counsel Scott J. Drexel yesterday. The discharge is effective next Wednesday; Drexel's contract won't be renewed. State Bar opponents can celebrate Drexel's fall as partly due to their efforts, but they shouldn't expect fundamental change in State Bar practices, which are rooted in its structure, its rules, the provisions of the State Bar Act, and the outlook of the national state-bar establishment.

Scott Drexel fell in a rift between the California State Bar establishment's prosecutorial and defense wings. The various grades of bar trial counsel support Drexel because he allowed the junior prosecutors to run rampant over attorneys' rights, but Drexel's retributionism hurt business for the State Bar's defense wing. Attorneys specializing in State Bar defense are predominantly former state-bar trial counsel. They remain genial with their erstwhile colleagues, who favor these tainted defense counsel in plea bargaining. The State Bar trades lesser discipline — truly an irrelevant consideration for most respondents, whose careers are destroyed by any public discipline — for respondents coached against contention. Under Drexel the deals have been fewer, disadvantaging the State Bar defense establishment and propelling it into a separate professional organization.

Likely the breaking point for the board of governors — which decided in an undemocratic closed meeting — was Drexel's attack on some lawyers as mortgage scammers. Drexel without clear authority required dozens of attorneys to answer inquiries, although he charged few.

Drexel prosecuted more often, seldom settled significant cases, and investigated extravagantly to justify the State Bar's budget during this economic depression. Unfortunately, more than expressing concessions to opponents of State Bar oppression, the rift between Drexel and the State Bar staff, on the one side, and the state-bar defense establishment and other attorneys whose income Drexel crimps, on the other, expresses interests competing for California's diminished fortunes.

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.