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.

kanBARoo Court. 26th Installment. Why is the NDC Unanswerable?

As argument for the upcoming California Supreme Court appeal, my earlier petition to the Review Department of the California State Bar Court suffers by omitting the most persuasive argument: the due-process violation inherent in requiring complete responses to ambiguous statements. The Review Department petition underplayed the practical ramifications of the notice of disciplinary charge’s (NDC's) failure to state disciplinable charges, and it limited practical discussion to mentioning the State Bar's habit of launching undisciplined investigatory "fishing expeditions" based on these improperly drawn opening pleadings. It overestimated the significance of fishing expeditions to a review court considering charges against a lawyer. The ease of adding new charges and the other procedures making undisciplined fishing expeditions threatening to justice demonstrate a public policy unworried about subjecting charged lawyers to these procedures.

This readiness to attach blame upon the Chief Trial Counsel’s issuing charges stems from the subject of the next Installment, legal ethics holding attorneys culpable for the mere appearance of impropriety. Consider the position of the Supreme Court, dedicated to this ethic and believing that the existing State Bar is better than nothing. When the Chief Trial Counsel's office can do no more than see smoke and presume fire, to require definite charges would keep this State Bar from opening a case. The Supreme Court prefers retaining this police function, even at privacy’s expense. Although undisciplined fishing expedition could find all attorneys commit rule violations, the point in itself is unprovable and legally almost irrelevant.

Avoiding undisciplined fishing expeditions primarily implicates the California Constitution's protection of privacy interests, a weaker interest than due process. The oppressive practice of requiring complete answers to ambiguous questions, on the other hand, directly violates due process. (See Commonwealth v. Lambert (2000) 765 A.2d 306 [“[w]hen an affirmative answer is exacted from a witness to a line of questioning loaded with assumptions favoring only the inquisitor, the leading question becomes not a tool of truth but of advocacy and intimidation”]) It is both strength and weakness of this case as a candidate for Supreme Court review that the most important violation of due process is unique to State Bar proceedings because of the expanded role of the initial pleadings, which also serve as interrogatories by requiring complete answers. Contrast the notice of disciplinary charges with the civil complaint and written interrogatories, another method of gathering civil-case information. A civil defendant must answer a verified complaint with specific agreement or denial but, unlike a respondent answering the notice of disciplinary charges:

• Need not provide a complete response or new facts; and
• Can demur to an ambiguous pleading, even if it states a cause of action.

A civil defendant confronted with an ambiguous interrogatory can:

• Object to the question; or
• Impose a reasonable restricted meaning and answer.

An example. The NDC’s paragraphs 19 and 21, count one reads:

Respondent willfully violated Rules of Professional conduct, rule 4-100(b)(1), by failing to notify a client promptly of the receipt of the client's funds, securities, or other properties, as follows . . . By not informing Yoo of the receipt of the medical payment from Infinity, or the Yoo settlement from Farmer's, Respondent failed to notify a client promptly of the receipt of the client's funds, securities, or other properties.

I could straightforwardly deny such an item appearing on a verified civil complaint. If one part of several is false, their conjunction is false, and no requirement of completeness intervenes. If such an item occurred embedded in a written interrogatory or request for admission under penalty of perjury, I could object to the question as ambiguous and refuse to answer. What do I say when answering the notice of disciplinary charges?

1. I deny Yoo was my client, as Kim and his accomplices handled the case secretly, elaborately concealing their criminal acts.
2. I deny any notice or constructive notice of the receipt of the funds.
3. I lack sufficient knowledge to affirm or deny that Kim failed to inform Yoo of the receipt of funds.

At least those points should be noted to comply with the requirement of providing a complete factual response to the allegations. The ambiguities in the charge prevent me from providing a simple, unequivocal answer and, in that way, prevent me from clearly stating my position. Such questions are designed to muddy the respondent's position by requiring the respondent to make numerous artificial distinctions, which the State Bar can distort in presentation to a busy court. (See People v. Crenshaw (1966) 241 Cal.App.2d 289, 296 [unwisdom of defendants’ propensity to "give answers to 'loaded' questions which subsequently may be reported in such a manner that they may appear to constitute evidence of their guilt"])

As it requires complete answers under oath, the Supreme Court should mandate special demurrers. Fortunately, a respondent can often reach these defects based on their failure to state a disciplinable charge. The pleading requirements for stating disciplinable charges preclude the most patent ambiguities by requiring ultimate facts and explanations connecting infractions with rules or statutes. Since these allegations fail to state disciplinable charges, moving for dismissal is a respondent's only rational response.

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Notice of New Posting Schedule

To prepare for the Supreme Court, these Installments will become more analytical, hence more time-consuming to prepare. Consequently, I shall be posting Installments at least twice per week instead of three times per week.

kanBARoo Court. 17C Installment. Opposition to motion to compel deposition.

This document is my opposition to the State Bar's motion to compel my deposition. Taking my deposition would have served to moot my motion to dismiss, because the Bar would then have already inflicted the harms of proceeding on a flawed pleading. You may recall, the court granted the State Bar's motion while denying its substance, by ruling that discovery could wait until the case was at issue.

If you take away one insight from this, it should relate to the benefits of taking a principled position based on law from the case's inception and acting in rigorous consistency with that position, even if that involved freezing the action at the pleading stage.
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Stephen R. Diamond (State Bar No: 183617)
Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
Joshua Tree, California 92252
Telephone: (760) 366-7920Facsimile: (866) 392-4866In Pro Per
The State Bar Court
Hearing Department - Los Angeles

In the Matter of
Stephen R. Diamond,
No. 183617
A Member of the State Bar
:
Case Nos. 05-0-04605 et al.
Opposition to Motion to Compel Respondent’s Deposition

Argument
1. Properly interpreted, State Bar Court Rule 182(b) delays discovery until resolution of a challenge to the Notice of Disciplinary Charges’ legal sufficiency.
A. The ambiguous rule must be interpreted in relation to its underlying policy.
State Bar Court Rules of Procedure, rule 182(b) provides that “No party may serve any formal discovery request until twenty days after the date the responsive pleading is originally due.” When the language of a rule is clear and unambiguous, the rule should be interpreted as meaning exactly what it says. But where the rule is either ambiguous on its face or where a literal interpretation fails to make sense in terms of the policies it attempts to implement, the literal interpretation must give way to an interpretation that takes the policies it seeks to implement into account. (See Seaman v. Superior Court (1987) 193 Cal.App.3d 1279, 1287.)
The rule in question is ambiguous on its face, and the most literal interpretation would defeat the evident policies that underlie it. The rule is ambiguous on its face because the rule does not clearly state what is meant by the date when the reply first falls due, because an answer is not the only response available. When as in this case, respondent serves and files a Motion to Dismiss the Notice of Disciplinary Charges, that pleading extends the time for filing an answer. This could be termed extending the original date or as substituting a new date for the original date. Hence, the ambiguity about the date originally due. This manner of extending the time for an answer by timely filing and serving a Motion to Dismiss contrasts with setting a genuinely new date, when respondent fails to timely respond to the NDC, and a default is entered. If the court grants respondent relief from the default, it sets another date, a date that can unambiguously be called a different date, not an extension of the first date.
Of these two senses of original date, only the second definition comports with a tenable rationale for the rule. Only where the respondent has failed to meet the original deadline does initiating discovery, despite the case not being at issue, serve purpose and policy. The alternative interpretation, that filing a responsive pleading other than an answer initiates discovery when the responsive pleading was due, penalizes filing a Motion to Dismiss. The rule cannot intend such penalization, because allowing a case to go forward, when a disciplinable offense has not been sufficiently charged, serves no one's interest.
B. The underlying policy of rule 182(b) is protection of Bar Members from State Bar fishing expeditions.
Under the Rules of Civil Procedure, plaintiff's discovery can proceed within two weeks of filing the complaint, even when the complaint is subject to demurrer. Understanding the reason for deviating from the procedure for civil discovery elucidates the policy that established rule 182(b) as the alternative to Code of Civil Procedure section 2025, subdivision (b) [“20 days after the service of the summons on, or the appearance of, any defendant.”] Limitations on discovery protect the respondent, and the rule's promulgators evidently saw that a Member of the State Bar requires more protection than a civil defendant, one reason among others being that the rights involved are more basic. (See In re Ruffalo (1968) 390 U.S. 544, 551 [Protection must be commensurate with the quasi-criminal nature of attorney discipline proceedings].) Where a respondent standing before the State Bar Court defaults, policy requires that he forfeit rights he would otherwise hold, even where the court grants relief from default. Normally the Member in such circumstances is enrolled as an Inactive Member. The intent to restrict the rights of the Bar respondent who misses the date for filing a responsive pleading thus comports with the other policies applied in the same circumstances.
A firm commitment to the ultimate first date for filing the Answer to the NDC prevents either side from manipulating the system and inflicting injustice on the other. Respondent cannot delay the proceeding by failing to file a timely responsive pleading. The Office of the Chief Trial Counsel cannot conduct a fishing expedition in discovery, unbounded by a legally sufficient notice of disciplinary charges.
C. To serve a protective function, partly substituting for summary procedures, the Hearing Department must resolve motions to dismiss the NDC before allowing discovery.
This is an important right of respondents secured by the State Bar Court's Rule of Procedure, rule 182(b). It is the primary policy expressed by that rule. The right to restrict discovery to questions related to an NDC that sufficiently states a disciplinable charge protects respondent from undue invasiveness. Since no summary procedure exists in a State Bar case, the respondent can avail himself of protection against indiscriminate invasiveness only through the Motion to Dismiss. It serves a quasi-summary judgment testing function, much in the manner served by pleading with particularity in civil fraud cases. [Small v. Fritz Companies (2003) 30 Cal.4th 169, 184 [In fraud causes, the requirement to plead with particularity serves the purpose of separating meritorious from non-meritorious cases in advance of trial.].)
2. Even if the motion’s likelihood of success is a proper consideration, the State Bar has failed to demonstrate a low likelihood of success of respondent’s motion for reconsideration.
A. What Ms. Lawrence or the Office of the Chief Trial Counsel “believes” about the likelihood of respondent prevailing on the merits of the motion to reconsider has no relevance.
Anticipating respondent's argument concerning the appropriateness of waiting for a ruling on respondent's motion to reconsider respondent's motion to dismiss the NDC, the Office of the Chief Trial Counsel argues based on its "belief" that the Hearing Department will deny the motion. Arguing based on belief neatly bypasses the actually relevant question, the likelihood of prevailing, which the State Bar must address objectively. Two kinds of information are available to consider the likelihood of outcome: the actual response or lack of response from the Hearing Department to date and the strength of arguments proffered in the motion to reconsider, when compared to the opposition to that motion.
B. The procedural posture of the motion to reconsider does not support the contended low likelihood of respondent’s prevailing.
As regards the procedural posture of the motion to reconsider, Deputy Trial Counsel Lawrence filed an opposition on October 23, 2007. Ten days have since passed. While respondent cannot fairly hold Ms. Lawrence accountable as of October 23 for what she knows on November 2, the fact that ten days have passed without a ruling tends to show that the decision on the motion was not an easy one, and Ms. Lawrence's cavalier belief that the court would deny the motion was unjustified. The length of delay shows that Ms. Lawrence belief that denial was a foregone conclusion does not find support in the judgment roll.
C. The State Bar failed to proffer persuasive arguments in its Opposition to the Motion to Reconsider to support a low likelihood of respondent’s prevailing.
Turning to the arguments advanced, respondent submitted a seven-page brief of tightly constructed argument, to which the State Bar replied with approximately two pages of opposing argument. Unless respondent's arguments were notoriously weak, this observation alone rebuts a conclusion that the motion’s failure is a foregone conclusion. Clearly Ms. Lawrence failed to answer many of the arguments, and those she did answer she answered in a notably superficial manner.
(1) The argument that the motion was untimely is frivolous in light of the court having granted respondent permission to file it after hearing Ms. Lawrence’s arguments at the telephonic status conference.
Ms. Lawrence first argued that the motion to reconsider was untimely. This is a plainly frivolous argument, because Ms. Lawrence raised the alleged untimeliness issue at the telephonic status conference where the court ruled against the State Bar’s motion to dismiss. Were it a foregone conclusion that that the motion was untimely, the court would not have permitted its filing, as the court did consider her argument. Ms. Lawrence provides no authority for her claim that the 15-day limit is mandatory as opposed to advisory. As policy, making the date mandatory would make little sense, because no one benefits from going forward blind to error of law. The Office of the Chief Trial Counsel behaves shamefully when it prefers disposing of a motion that goes to issues of law based on the motion's alleged untimeliness, after the court agreed to allow the filing. The court’s permission precludes any argument to judicial economy that might counter-balance the loss of judicial accuracy. Would Ms. Lawrence have the court ignore the motion, after having taken the time to read it, even with a legally well-taken argument to error of law? And if not, what was the point of making this argument--as her first argument, no less--instead of relying on the argument that the motion lacked merit? Counsel emphasize a procedural argument standing in this posture only when completely lacking confidence in the rebuttal’s merit. One must conclude that Ms. Lawrence’s lack of belief in a substantial probability of respondent prevailing on the motion to reconsider lacked good faith.
(2) Ms. Lawrence fails to offer a serious argument as to the meaning and import of the State Bar cases she cites while misconstruing those cases.
Proceeding to the merit of the rebuttal itself, Ms. Lawrence cites two cases as authority that the judicial error respondent noted was correct application of law. These are Review Department cases, which offer scant basis for challenging the line of California Supreme Court cases respondent cited in his motion for reconsideration. She does not even bother to discuss these Supreme Court cases, and she takes the holding out of context. Matter of McCarthy (2002) 4 Cal. State Bar Ct. Rptr. 364, which Ms. Lawrence does not bother even to quote, states that whether the facts are properly actionable in that State Bar matter is the only issue at hand--the only issue, as opposed to determining whether the facts alleged are true. The case does not intend to say that this is the only issue that ever merits consideration when the State Bar Court rules on a motion to dismiss. That would be contrary not only to the cited Supreme Court cases but to the express meaning of Rules of Procedure, rule 101(b), which states the requirements for legally sufficient charging allegations.
(3) Ms. Lawrence fails to offer any support for her contention that an argument offered for reconsideration in a State Bar case must repeat an argument already made in the underlying motion.
Finally, Ms. Lawrence argues that respondent had not made his main argument in the Motion to Dismiss the NDC. With cavalierness that has become emblematic, the Deputy Trial Counsel first ignores respondents footnote on page 4 of respondent’s Motion to Reconsider, where respondent points out the actual equivalence of this argument and the argument made in the Motion to Dismiss. Secondly, she cites no authority for the strange proposition that only arguments already proffered can be made in a motion to reconsider. Ms. Lawrence would like to have it both ways. The court will deny the motion to reconsider, because respondent offers nothing new. If not that, the court will necessarily deny the motion to reconsider, because that motion fails to repeat arguments already made.
Conclusion
Respondent treats some additional matters the State Bar's motion raises in his attached declaration. Ms. Lawrence, unable to sustain the soundness of her Notice of Disciplinary Charges seeks unlawfully to conduct discovery without constraint in the hope she will have something to put it place of the current NDC, if the State Bar Court finds it insufficient as a matter of law.
Dated: _________________________

By:
Legal Research & Writing Service
Stephen R. Diamond
Respondent’s Declaration in Support of Opposition to Motion to Compel His Deposition
I, Stephen R. Diamond, declare,
1. I am an attorney admitted to the practice of law before all the courts of the State of California and respondent in this matter. I declare to all statements on personal knowledge, and if called upon, I could and would testify competently to them.
2. Respondent requested that Ms. Lawrence continue the deposition for only sufficient time to allow respondent to file a motion for a protective order. A correct copy of this request is attached as Exhibit ‘A.’
3. Ms. Lawrence denied this request. A correct copy of her denial is attached as Exhibit ‘B.’
4. Respondent did not file the motion for a protective order because of calendaring error.
5. Respondent has previously argued and is prepared to argue further that any delay resulted from actions of the State Bar, not from actions of respondent.
6. Respondent motions and opposition represent a good faith effort to defend himself against an insufficient NDC and against improper tactics employed by the Office of the Chief Trial Counsel.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on ________________________________________ in Joshua Tree, San Bernardino County, California.
_________________________________Stephen R. DiamondDeclarant

kanBARoo Court, 11th Installment, What's Wrong with Fishing Expeditions?

A fictitious deposition segment of a State Bar respondent ('K'), by Deputy Trial Counsel ('J'):

J: You claim to have complied with the Rules of Professional Conduct, yet you have repeatedly lied before the courts of California.

K: Untrue.

J: Please look at this declaration. Is that your signature?

K: Yes it is.

J: You signed this declaration under penalty of perjury. Is that correct?

K: Yes it is.

J: Is everything you affirmed under penalty of perjury as true, actually true?

K: Yes, I don't execute declarations unless I know that the propositions I declare are true.

J: Was it true, then, that you required more than 35 special interrogatories in this simple breach of contract case.

K: Yes, in my judgment, I required more than 35 special interrogatories to properly discover the facts of the case.

J: But you took defendant's deposition. Could you not have asked those additional questions in the oral deposition?

K: I could have. But in my judgment, I needed to pin the defendant down before the deposition.
J: Based on your judgment that you needed to pin down the defendant, you declared under penalty of perjury that the questions were necessary. You justified an exception to the 35-question rule, an exception that must be based on actual need, on your value judgment that it would be helpful to ask for the answers in writing first?

K: Necessity is not subject to a bright line test. My standard for necessity did not diverge from the norm in the professional community.

J: Well, I don't think you are going to be the judge of that. But let's move on to another question regarding the truthfulness of this declaration. Are you aware that the Code of Civil Procedure states that signing any legal paper verifies under penalty of perjury that the document was printed on recycled paper?

K: Yes I am aware of the rule. I am also aware that few attorneys believe that the provision you reference was seriously meant for enforcement.

J: Spare us your self-serving opinions about what other attorneys do. This case is not about them. We took this paper to a chemical laboratory and established that it was not recycled stock. Do you admit it was not unrecycled paper?

K: I don't know what kind of paper it was. Whether the paper I printed the document on was recycled or otherwise is not something I or most attorneys worry about.

J: Whatever your excuses, you admit that you signed the document, thereby verifying under penalty of perjury that the paper was recycled. At best, you had no knowledge about whether it was or was not recycled. Do you think that satisfies the definition of perjury?

K: I'm not here to debate the law with you, but I do not think that perjury can be established constitutionally by statutory imputation of meaning. Perjury is determined from the facts and the four corners of the document.

J: Your legal opinions are of no concern to me. Regardless of whether you can be convicted of perjury, you signed a statement implying you knew the paper was recycled. Whether a criminal act of perjury or not, by signing falsely, you committed an act of moral turpitude, mandating your disbarment.

In this story, Deputy Trial Counsel J's fishing expedition paid off. Fishing expeditions in general have fallen into unwarranted bad repute. In deposing a party in a civil lawsuit, counsel is not limited to inquiring about potential evidence. The information sought may be fashioned to lead to the discovery of admissible evidence, even if the inquiry is not about that evidence. But if the information is not relevant, that information will not be admissible at trial. Either it leads to admissible evidence or in the end it is worthless. Not so with testimony before the State Bar, where the notice of disciplinary charges can easily be amended to encompass any matter discovered.

Rules and laws span the gamut in degree of their intent to be construed in all earnestness. Much of what a lawyer learns during his vaunted experience consists of knowing how seriously to take various rules. The recycled paper rule is a nice example of a rule few take seriously. When an attorney is charged with moral turpitude, little machinery exists to enforce a distinction as to the seriousness of the law's intent. A fishing expedition can thus be a devastating instrument of inequity. The only way to stop it is to insist on a proper, factual, notice of disciplinary charges.