kanBARoo Court. 34th Installment. disHONNest Judge

Judge Honn's awaited disbarment recommendation arrived Monday, relieving me of the chore of compelling the State Bar Court’s issuing this precondition to California Supreme Court review. The 24-page recommendation was a cut-and-paste job from fragments our prosecutrix composed. In response, I extend a warm invitation to both the prosecutrix and the Good Judge to consult my other blog, Disputed Issues, where they can extract advice about finding a much needed legal ghostwriter.

Judges are less intellectually honest than most of us might prefer to believe. Judicial tactics in a close case, for example, include omitting important facts supporting the other side. (See for example, Odom v. South Carolina Department of Corrections (4th Cir. Dissent 2003) 349 F.3d 756 ["Finally, in addition to its selective recitation of facts and mischaracterization, the majority omits entirely to recite perhaps the most critical facts from Odom's allegations that ultimately prove the reasonableness of the actions taken by all of the defendants, and Taylor in particular."])That judges are not possessed of greater intellectual honesty disappoints, but while omitting discordant facts in court opinions isn't exceptional, intentionally misstating a party's position is. A court may misunderstand a legal theory, and as I discuss in my other blog, incomprehension is a frequent unwanted result of common litigation tactics. (See for example, "Emotionalization.") The magnitude and direction of the misrepresentation, when compared to the information available and the depth of review claimed, proves intentional deception outside judicial norms. Judge Honn's comparable performance in the Richard Fine case also supports this criticism of the court's integrity. There, the court failed to present Fine's contentions, despite Fine's unmistakeable clarity. In the Richard Fine series (see 30th Installment to 30C Installment), I summarized:

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 transpired, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done. (30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty.)

In Judge Honn's Fine recommendation, the court held it had no duty to respond to Fine's contentions, an evasion that still doesn't explain the distortions in the court's opinions. The court misleads about my position by misstating explanations I provided to defrauded persons and the court, as when Judge Honn states:

Instead, in his response to attorney Kim, he [respondent] disavowed any knowledge of Yoo's case, claimed that he was not her attorney, never had been her attorney and owed her no duty, and blamed his office staff for the misconduct. Respondent claimed, further, that he had recently fired Kim and staff upon discovery they had signed medical liens without his permission." (Judge Honn, Decision, p. 5.)

By out-of-context paraphrase, Judge Honn dissembles my disavowal of duty to supervise staff. Rather, I contended consistently to defrauded persons and to the court, a small subset of the public served at my office comprised defrauded persons distinct from clients, with whom I had an attorney-client relationship. Staff handled defrauded persons' cases conspiratorially, including communicating about those cases only in Korean. As I wrote on penalty of perjury in my original motion to dismiss the Notice of Disciplinary Charges:

Kim, Shin, and colleagues plotted undetected by respondent by using their native language for office communication. Respondent—relying on his clients to report any complaints, problems, or anomalies—thought the absence of client complaints verified the operation’s correctitude and did not entertain the possibility that each and every employee would cooperate in keeping Kim’s operation secret. Kim had only recently hired most of the staff, whom Kim and respondent instructed on respondent’s ultimate authority. When respondent finally received a complaint from Scott Meyers, Esq., despite the fraudulent and extortionate character of Meyers’s demands, respondent immediately investigated. Finding he could not rely on his staff, respondent promptly closed his office. (17th Installment, Original Motion to Dismiss.)

kanBARoo Court. 30A Installment. Collateral Estoppel as a Tool of Judicial Bias in the Richard Fine Matter

Although Richard I. Fine’s supposedly corrupt motive for filing motions deemed frivolous formed the crux of the State Bar's case against him, the State Bar Court also made a strained attempt to allege dishonesty, lending a comic aspect to its account. A dispute arose over an apparent Freudian slip by a Superior Court judge in his statement of refusal to disqualify one Commissioner Mitchell, when that Superior Court judge, hearing Fine's motion to disqualify, contradicted himself. The judge wrote that Fine's objections were unfounded and also wrote that Commissioner Mitchell had been "not impartial.” Later, the Superior Court judge announced he had not intended the negation. Judge Honn concluded that Fine had lied to the Court of Appeal about the contents of the Superior Court judge's opinion, when Fine insisted the opinion was actually self-contradictory.

Judge Honn claimed the Superior Court judge had clearly made a “typographical error.” The characterization is curiously inaccurate, and it reveals how Judge Honn wears his bias on his sleeve. This is a most strange "typographical error," a term that "includes errors due to mechanical failure or slips of the hand or finger, but excludes errors of ignorance." (Wikipedia.) If the Superior Court judge successfully maintained his mistake was clerical in nature, he is entitled to correct it sua sponte, but the source of his mistake, if it was a mistake, looks to be his confusing the meaning of "partial" and "impartial," not a clerk typing the wrong alpha-numeric. Small gestures, such as mislabeling one contender's errors, are often key to detecting judicial bias. Although respondent Fine was entitled to a clear and convincing evidence standard of proof, Judge Honn tilted the playing field in the opposite direction, when he used a euphemism for the supposed error.

The Bar Court determined that Fine misrepresented the Superior Court judge’s opinion, treating Fine's disagreement with a judge as though it were dishonesty. No doubt the disagreement was serious, as Fine challenged the judge on characterizing judicial intent. But Fine was entitled to challenge the judge’s characterization, and entitled to treat the document as meaning what it literally said. The State Bar Court's finding by clear and convincing that the judge had made a typographical error expresses genuine absurdity, besides absurd pettiness.

But wait! Did the court even have to evaluate the evidence? In evaluating the typographical error matter, the Bar Court claimed to have conducted an independent evaluation, but in supporting many of its conclusions, the court applied the doctrine of collateral estoppel to Fine's contempt conviction. A contempt conviction is essentially a criminal matter, and while the applicable standard of proof is more than adequate, other problems should have deterred using the contempt conviction to effect issue preclusion. California courts do apply collateral estoppel liberally, having abrogated the traditional requirement of mutuality, but liberality in the formal requirements must be balanced by greater exercise of judgment. When applying collateral estoppel, California law requires that the courts address whether the specific application of the doctrine serves the interest of justice. (People v. Taylor (1974) 12 Cal.3d 686, 695.) Collateral estoppel based on criminal judgments is controversial in jurisprudence and requires particular scrutiny.

Two considerations should have led the court to decline to collaterally estop Fine: incomplete finality of judgment and differential motive to defend. Collateral estoppel requires finality in the collaterally applied judgment, but criminal judgments necessarily lack a civil judgment’s degree of finality, because they are subject to collateral attack for reasons intrinsic to the case. Reasonably, if you suffer a criminal conviction, it may be reversed, if say, witnesses condemned you by committing perjury, whereas, in a civil case, you must attack the perjury in the case itself. Fine's allegations of de facto bribery of Superior Court Judges amounts to an allegation of intrinsic and extrinsic fraud, which warrants collateral attack, since Fine's conviction is only as strong as his underlying civil case against the County is weak. Since Fine was still contesting the civil action, the contempt conviction lacked the requisite finality. The other implicated criterion, equal incentive to defend, requires that Fine have the same motivation to litigate the contempt conviction as the disbarment. Unlike disbarment, contempt is not inherently ignominious. Disbarment, moreover, is a more serious penalty than spending three days in the local jail. Fine lacked the same motivation to defend the contempt action as the disbarment, and the contempt conviction, consequently, was not probative for his disbarment case.

The court offered no analysis of whether applying collateral estoppel to the contempt conviction served the interest of justice. The court would then have to consider Fine’s contentions. The State Bar Court’s disregard for respondent argument is damning in general but expressly unlawful when the court applies collateral estoppel.

KanBARoo Court. 13th Installment. The State Bar Gets Nervous

Pulling another trick out of the California State Bar's dirty bag, the Office of Chief Trial Counsel files another motion to enter default, notwithstanding my pending petition for review. The court (or “Hearing Department”) deserves blame for this frivolous motion, because the court emboldens the prosecutrix by mixing messages in orders. Judge Honn twice granted the substance of my motion or denied a motion I opposed. In each, the court pretended that the Bar prevailed.

The first installment treated one instance, a hearing where the court denied the Bar's motion to enter default and permitted me to file a motion for reconsideration. While upbraiding me in harsh generalities, the court granted my opposition’s substance. Yet, listening to all the criticisms directed at respondent, the prosecutrix did not carry away a cautionary message from her failed first attempt to take a stealth default.

In the second instance, the Hearing Department granted delay of my deposition until it ruled on reconsideration. Yet, in ruling in my favor, the Hearing Department styled its order a denial of my motion to continue the deposition notice. Again, Judge Honn ruled in my favor on the matter before him, while clothing the order in terms celebrating Deputy Trial Counsel's victory.

The court does not obfuscate orders merely to feed the prosecutrix’s ego. It intends respondent forgo taking encouragement. This is important because, for want of legal judgment, the Bar cannot count on weathering a litigation storm. Consider the frankly pathetic whining of Deputy Trial Counsel Melanie J. Lawrence, in trying to support her frivolous new motion for entry of default:

Trial in this matter is scheduled to begin December 17, 2007.If the regular time for response to this Motion is allowed, the deadline for a written response will be the same date the beginning of trial is scheduled. As it is, the State Bar has been severely prejudiced in trial preparation by the fact that no response to the NDC has been filed.

Ms. Lawrence's problem is that her astoundingly bad legal judgment wasted a lot of the Bar's precious time. Respondent filed a motion to dismiss on September 4, and the Hearing department noticed rejecting my immediately subsequent motion to reconsider on November 11. That's nine weeks for two motions, judicial transactions that should require only five. The State Bar lost its month because Ms. Lawrence refused to waive her right to proof of service. Proof under the circumstances was a purely technical requirement and one that the State Bar had already waived by accepting my document for filing. No court, not even the State Bar Court, could enter default on these facts:

1. Respondent files the document;
2. Five days pass; and
3. Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.

The prosecutrix behaved outrageously, and I admit it surprised me. She filed the motion and then spent weeks of valuable time waiting for the result. Why? She just did not know her motion stood not a chance. She believed she would prevail.

The Bar intimidates lawyers to suppress serious litigation, at cost to its attorneys' basic legal experience. What passes for litigation is quibbling about the time span for a suspension. Incidental errors also testify to the Bar's impoverished capabilities. While the prosecutrix wants the Bar to shorten time for responding to her motion, her motion can take at most a couple of days off the response deadline. Had the State Bar served its motion for default by overnight mail, it would have gained four days without court intervention.

Attorneys conducting a disciplinary defense against any of the state bar associations need to develop a case that challenges the State Bar on fundamentals, whether procedural or on the merits. The State Bar proves unequipped to deal with such challenge.

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kanBARoo Court, 5th Installment, Good Cop, Bad Cop at the State Bar

In prosecuting a State Bar case, the California State Bar's Office of the Chief Bar Counsel plays bad cop, and the Hearing Department of the State Bar Court plays good cop. These departments of the California State Bar work in concert. Not that they admit the complicity, but neither do they otherwise take any pains at concealment. Collaboration is evident from the timing of the court's processing of the papers: the way the Hearing Department expedites those matters and only those matters whose expeditious handling serves the Office of the Chief Trial Counsel.

A recent example. I was promised — more precisely, threatened with — expeditious handling of my motion for reconsideration of the State Bar Court's denial of my motion to dismiss the Notice of Disciplinary Charges. Eleven days passed after parties completed all filings. So much for expedited handling. Sometimes the opposite of expeditious handling serves the Office of the Chief Trial Counsel. Here, the State Bar Court aided that office to try to proceed to deposition before my motions tested the NDC. The court tried to give the Office of the Chief Trial Counsel the fishing expedition it wanted. If the Hearing Department decided it had to grant my motion to dismiss — the Rules of Procedure and at least six Supreme Court decisions directly require it — the Hearing Department would help the Office of the Chief Trial Counsel place another NDC in its stead. The Hearing Department would try to make sure the Office of the Chief Trial Counsel had the facts it needed, by allowing their collection before the case is at issue. The Hearing Department tries to minimize the respondent's rights, within the scope of reasonable minimization of the probability of reversal.

I had turned the legal tables on the State Bar, however, by basing my opposition to the motion to compel on the NDC's pendency. My opposition to the motion to compel arrived at the State Bar offices this Monday. That same day, the court issued its denial of my motion to reconsider. This rate of response is not a typical Hearing Department response rate; never, ordinarily, on the same day. I cannot explain timing so responsive, except where the Office of the Chief Bar Counsel pointed the Hearing Department to my connecting the two pleadings.

These observations may fall short of the standards for admissible evidence, but the prior question is: do the usual rules against ex parte communication actually govern the State Bar? To the contrary, do the judges of the Hearing Department regularly confer informally with State Bar counsel? Are they then violating any rule or statute; do they know it?

Besides the obvious nexus between these two departments of the State Bar Court, aspects of public policy that actually encourage ex parte communication between these departments provide another reason to doubt the State Bar feels constrained to avoid ex parte communication with Hearing Department judges. In Los Angeles, the Office of the Chief Trial Counsel and the Hearing Department of the State Bar Court reside respectively on floors four and five of one office building. Without knowing which, one must question either the wisdom or the intent of such propinquity. The physical arrangement alone bespeaks an enormous public-policy confusion and indecision regarding State Bar Court judges' independence from the Office of the Chief Trial Counsel.

An additional policy nexus between these departments of the State Bar — Hearing Department judges have been known to receive jobs as Chief Trial Counsel, the judges themselves seeking out the job change, because they consider the prosecutorial position a promotion. The Chief Trial Counsel is the quarterback of the State Bar team.

Decisional law construing administrative law guarantees an independent hearing in an administrative law court. The Supreme Court based that guarantee on its interpretation of relevant Government Code sections, which established standards for administrative law courts. The State Bar Court, similar in function to courts like those charged with disciplining physicians, has the trappings of an administrative court. However, the State Bar Count is not an administrative court; to the State Bar court, the laws governing administrative courts do not apply, and the decisional law interpreting those statutes does not apply. For the State Bar Court is a sui generis organization, from which status stems a considerable part of its mischief, as no well-construed body of law regulates it. Nowhere in the general appellate case law do you find any holdings imposing (or denying) the right of a State Bar Court respondent to enjoy freedom from bias by private communications from the Office of the Chief Trial Counsel. The Rules of Procedure of the State Bar Court expressly exclude the Government Code and the Code of Civil Procedure from applying to Bar case. A review court typically invokes those bodies of code in finding error due to ex parte communication.

In totality, however, the State Bar's governing law clearly bans ex parte communication with the judge, although no procedure is in place to effect that ban or even to reiterate it. For although the State Bar is charged with enforcing the Rules of Professional Conduct, in its own practice the Enforcement Division is particularly prone to ignore them. Rule 5-300(B) states that "A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer … " We on the outside of the State Bar Establishment, however, have no way of knowing whether the State Bar often abides by this rule or regularly breaches it. From appearances, it not only breaches the rule but also is aware of the transgressions only to such a degree that it refrains from admitting them. The State Bar takes few pains to keep the collaboration opaque to inference.

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