kanBARoo Court. 38th Installment. Extortion, State-Bar Style

A State Bar respondent usually receives first contact through State Bar Investigations. This division's investigations have received scant treatment here, because there is no case law governing their conduct. Well-established law makes credibility the sole determinant of the evidence's weight in the State Bar Court, and the courts do not rule on investigatory methods where they don't bear on its fruits' admissibility. (In re Gross (1983) 33 Cal.3d 561, 566-567 ["[O]nly such irregularities in the State Bar proceedings as reasonably can be seen to have resulted in unfairness to the attorney would cause us to disregard his misconduct disclosed thereby."])

The law's neglect of the State Bar's investigations affirms the wisdom of the U.S. Supreme Court's exclusionary rule, which makes evidence inadmissible in criminal court when collected in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments. Misconduct's irrelevance to State-Bar-Court admissibility has created an unregulated Investigations Division. Only exclusion deters collecting evidence in illegal ways, as the vast bulk of the case law governing search and seizure under the Fourth Amendment arises from the exclusionary rule.

The exclusionary rule probably applies to evidence collected by the Investigations Division in violation of the Fourth and Fourteenth Amendments. (See Dyson v. California State Personnel Board (1989) 213 Cal.App.3d 711.) But the exclusionary rule does not constrain State Bar investigations, because the State Bar doesn't usually do its own searches. (See Emslie v. State Bar (1974) 11Cal.3d 210, 229-230 [Evidence independently collected by the Nevada police admissible in the State Bar Court].)

The State Bar Investigator's favorite form of misconduct is extortion. Generously rewarded, apparently, for an accused Member's resignation, the non-attorney Investigators advise the Member on how resigning serves the Member's legal interest. Investigators harass Members by phone, reminding them to think about this option. A piece of blackmail gives rise to this urgent advice, as the Investigator has already concocted law to warn the Member of his probable criminal fraud conviction. The Investigator good-naturedly offers the Member hope, promising that his resignation stops the investigation. The fear that the Investigator so kindly offers to allay is founded on the Investigator's threat to convey the evidence to the Attorney General, if Member contests the charges.

Penal Code section 518 defines extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." The Investigator's threatening resignation-induction satisfies the "official act of a public officer" prong, because the Investigator demands the signed resignation of an attorney, an officer of the court. Penal Code section 519, subdivision 2, defines the fear-induction the preceding section prohibits to include "[accusing] the individual threatened ... of any crime." The Investigator's threats elicit fear by accusing the Member of criminal fraud.

The California Supreme Court holding that only the strength of the evidence before the State Bar Court matters perpetuates Investigators' criminal practices, such as extortion. These practices do not serve the interests of justice because they create a lawlessly capricious mindset among Investigators. The experience with the exclusionary rule shows that only excluding evidence illegally collected avoids its illegal collection. The State Bar Court should adopt specialized exclusionary rules to supplement the federal rule, so Investigators don't rely on extortion to coerce resignations.

kanBARoo Court. 22nd Installment. Can you tell victory from defeat?

Notice of entry of default was served on me yesterday, a result almost all correspondents, including some sympathetic and smart lawyers, consider a legal disaster. In similar vein, sympathetic readers criticize this blog as self-defeatingly defiant. They attribute entry of default to this defiance — correctly, now that I know the harsh result's antecedents. For the first time, prosecutrix Melanie J. Lawrence — the evening before the OSC hearing — downloaded my blog. Lawrence read the installments systematically from first to last, spending three to five minutes per installment. Adding to the data tracking the prosecutrix, her chief witness, Scott A. Meyers, Esq., read my blog the next day for more than an hour.

These events accomplish my tactical purpose, ignored by critics, their analytic blind spots my expository shortcomings. I may be partly forgiven because enemy anticipation allows some tactics less effect. The hidden tactic plays to an adversary's irrationalities, a well-known principle of warfare originating with Sun Tzu, who said if the enemy is quick to anger, provoke him. I learned the State Bar was quick to anger after I responded to State Bar Investigator Thomas Layton's advice to resign by informing him he had engaged in the unauthorized practice of law. The State Bar is accustomed to malleable respondents expressing actual guilt or feigned remorse, and frustrating the State Bar's expectations provokes its wrath. Sun Tzu's insight inspired me to shower the State Bar with provocative writings.

Another undermentioned strategic premise concerns probable source of relief, unlikely from any quarter below the California Supreme Court, destination of my notice of the NDC's insufficiency. Prevailing on that issue wouldn't end the case, as might the review portending, since the leading issue has changed to wrongful entry of default, a favorable change this sequence shows:

1. I move for an immediate stay and reconsideration of the Order to Show Case (OSC).
 

I mail this motion personally to the judge, including proof that Lawrence twice perpetrated fraud on the court and might continue her criminal misconduct.

2. The State Bar moves for sanctions, entry of default; it opposes my motion for reconsideration and request for a stay.

In its papers, the State Bar complains about my "waging a campaign against DTC Lawrence," but it admits that Lawrence received an unsigned proof of service. Lawrence fails to state that she can produce it, proving my allegations by the omissions rule.

3. I don't file oppositions to the State Bar's motions.
 

I contend the judge violated my federal and state due process rights by not acting against fraud and that I can't rely on the clerk's office while disputing its reliability. On the facts presented, moreover, the court is unjustified in concluding that I failed to file the motions, because it is as likely that oppositions were subjected to tampering after their actual reception by the State Bar Court clerk. The judge ignored this obvious likelihood.

4. The Review Department denies my petition for review in formulaic terms, while first granting my motion for relief for late filing.
 

Entitled to apply for a stay, I was denied this opportunity because the Review Department didn't inform me it was considering the papers, and instead of mailing a notice of filing, the court clerk mailed a rejection for filing, informing my secretary of the papers' disposal.

5. The judge orders the clerk to enter my default for not answering the notice of disciplinary charges, putting me out of court in the Hearing Department and Review Department.
 

The judge denies my motion for reconsideration of the OSC and request for a stay — at the OSC itself, weeks after I made them. While the main basis for the stay and the reconsideration concerned the criminal misconduct of Deputy Trial Counsel Lawrence, the Court doesn't mention these allegations in its orders and announces no findings of fact. The Hearing Department doesn't want me to take these facts to the Supreme Court. These oppressive, irascible bureaucrats were provoked by my blog — newly discovered on the eve of the OSC —allowing me to build a petition for review on denial of due process of 5th-and-14th-Amendment proportion, Supervising Judge Honn participating in the coverup.