kanBARoo Court. 39th Installment. Delay

By manipulating delay unilaterally the State Bar usually gains a decisive unfair advantage, although fundamental fairness calls for respecting both sides' interest in resolving State Bar matters speedily. (See, for example, Patton v. Patton (1998) 973 S.W.2d 139, 150 [Duty to avoid unfair advantage in granting continuance].)The State Bar Court ignores respondents' interests.

The State Bar's ability to delay appellate review is an effective weapon against some respondents who base their defense on law. The advantage the State Bar obtains can be seen from my case's procedural posture, in which Supreme Court review of State Bar Court decisions is a two-stage process. Respondent first files a petition for review, setting out why the case is entitled to review under any of the four criteria that give the Supreme Court jurisdiction. The State Bar can file an opposition and the respondent a reply, all within a couple of weeks. The Supreme Court usually summarily denies these petitions, but if the Supreme Court decides that review is proper under statutory criteria, the case is then fully briefed, oral argument invited, and a written opinion published. Petitioning the California Supreme Court for review is the exclusive appellate option for a defaulted respondent. The process has been emasculated, where the court can reject a review petition without commentary. Unlike a petition for writ of mandate, the petition for review from the State Bar Court's recommendation requires—without any accountability mechanism—that the Supreme Court undertake an initial review. (See In re Rose (2000) 22 Cal.4th 430.)

Once the Member's right to practice is suspended, the State Bar Court goes into slow motion. Preventing the Member from practicing law completely satisfies the State Bar's putative mission to protect the public and the integrity of the legal system. Between entry of default in my case and filing the court's opinion in the State Bar Court, two months elapsed. Between the preparation of that opinion and its prospective filing with the Supreme Court, the two-month point arrives in a few days. As you would expect, the State Bar's dilatoriness is even worse when it loses. In the Benninghoff case, the State Bar took more than three months after the Court of Appeal's order to return illegally-confiscated federal-case files.

In the pretrial phase by contrast, the Office of Chief Trial Counsel curtails respondent's active litigation with incessant accusations that respondent uses delay tactics. The State Bar exploits its public-protection charge to justify its conveniently heightened pretrial concern with speedy process. The Bar misconstrues its putative mission as broadening its duties' scope by providing new imperatives unique to the State Bar system, a misconstrual absurdly implying that the criminal justice system does not act for public protection. The State Bar Court differs from the criminal justice system by its limitation to public and system protection. Punishment's absence from its disciplinary purposes does not excuse the State Bar's calculated haste.

kanBARoo Court, 6th Installment, The Benninghoff Miscarriage of Justice

The State Bar Establishment feeds rule by bureaucratic reflex and justification by cheap moralism. A section of the law professariat avidly supports this trend as affording license to display their moral superiority. These are natural allies of the State Bar Establishment. Astute observers know that those most aggressively publicizing their moral credentials likely are themselves psychopaths, particularly when they do it to others' detriment.

What to surmise when a law professor begins a blog entry with: "Don't be a sleazeball"? What to surmise when this professor's errors of fact are pointed out, the law professor considers the matter so unimportant that he deigns not even to correct the errors of fact. The State Bar as constituted is not the institution to do it, but outrageous libelous publication warrants discipline for moral turpitude. Certainly the demonstrated lack of concern for truth warrants the writer's removal as a law professor.

The blog entry belongs to one Professor Shaun Martin, and the entry appears at http://tinyurl.com/244lqw The case on which Martin comments is published at Benninghoff v Superior Court (2006) 136 Cal.App.4th 61. Professor Martin recites facts scarcely recognizable as belonging to the same case. Martin's most egregious errors are 1) he pretends that the court found that Benninghoff's representation before federal administrative law courts was unauthorized practice of law, when Benninghoff prevailed on this issue; and 2) Martin pretends that Benninghoff was found to have violated laws barring the unauthorized practice of law, whereas the Court of Appeal refused to rule on that question, finding instead that Benninghoff breached a special set of standards pertaining to the practice of law by former attorneys. The first lie is so false and so foul that I will abjure further discussion, lest the stench — to use one of Professor Martin's choice terms — prove infectious. The subject of this installment is the second misrepresentation of the facts and the court's opinion because it highlights the pitfalls in Bar Defense by even experienced and zealous advocates and points to the level of legal theorizing necessary to keep the State Bar from devouring the law.

Benninghoff's web site at http://www.administrativelaw.net/ shows that the Court of Appeal failed to mention substantial contrary law argued before it. This showing did not suffice to win a Supreme Court review. To prevail, Benninghoff needed to raise deeper issues of law. Had the court said that the law prohibits nonattorneys appearing at administrative hearings, the issue could be addressed at the familiar level of case law and judicial council opinions. The court did not address it at that level because the State Bar would not have prevailed on those considerations, precedent considered. The Court of Appeal opted to save part of the State Bar's case by distinguishing the duties of a resigned or disbarred attorney, on the one hand, and laymen who have never been attorneys, on the other. By making this distinction the Court of Appeal reached the decision it apparently wanted to reach, but it did so by crafting a rule absurd on its face and unconscionably arbitrary on analysis.

When you go up against the State Bar, you deal with a legally unsophisticated agency that will take any of your rights it can. That is the only way the California State Bar can function, as it lacks the legal aptitude and experience to litigate difficult questions of professional ethics. The workload facing the appellate courts these days is so heavy that you cannot expect the court to recognize the absurdity of the State Bar's position spontaneously. You must fight a battle directed against the oppressively arbitrary distinctions the State Bar will try to foist on your case, attacking them at their root, not at the most superficial legal level possible.

Superficial attack is usually the favored way to proceed. You don't raise questions of constitutional magnitude unless you absolutely have to. When you have a serious case before the State Bar, you have to. You must energetically break certain routines and habits of ordinary litigation, because you are encountering a force whose strength consists of its brazen willingness to draw arbitrary and oppressive distinctions and of its institutional connections, which gain acceptance for its travesties.

Think about what the State Bar is saying and what the Court of Appeal held. The State Legislature can impose special punishments on persons based on their occupational history. When you become a lawyer, you forfeit forever the rights everyone else has, even (and especially) if you cease being a lawyer. Having been a lawyer, according to the Court of Appeal, you can never again represent parties in a lay capacity, even where anyone else but a former lawyer has this right. This must strike any fair-minded person as oppressive and insane. What will the next law be: that any citizen can home school his children unless he has previously worked as a teacher?

Fortunately, there is a term for such legislation — or as here, construal of legislation. Standards are in place to preclude these arbitrary manipulations of the law, to prevent the courts or the legislature depriving citizens of rights unrelated to any punishment for any crime they have suffered conviction. As any fair-minded person's gut reaction will tell him, precluding this kind of law is a very basic kind of right. It is so basic that to reach it, you need to go to the original U.S. Constitution, beyond even the Bill of Rights. If the concepts are unfamiliar, it is because no one except the State Bar would propose a distinction so invidious and have the social weight to get approval by the Court of Appeal.

Benninghoff v. Superior Court construed Government Code section 6126, subdivision (b), in so crazy a manner that it turned it into a bill of attainder. The prohibition of bills of attainder serves the separation of powers, the prevention of legislative infringement on the judiciary's prerogatives to find guilt and to punish. "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply — trial by legislature." (U.S. v. Brown (1965) 381 U.S. 437, 440.) As James Madison explained ""Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation." (Federalist Number 44 (1788).)

The Legislature cannot pass laws specially punishing resigned or even disbarred attorneys without trial and remain within the U.S. Constitution. Punishment is for the judiciary, and any law construed as a bill of attainder must be invalidated. The Bar Establishment must be precluded from imposing punishment by attainder on lawyers and obfuscating the real issues with its strident moralism. To fight the Bar you must be able and willing to deal with the most fundamental issues.

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