79th Installment. Chief Trial Counsel's Office Admits Grave Lapses in Bar Prosecutors' Legal Ethics

9^th in Philip E. Kay series
In its brief opposing Kay's petition for writ of review, the California State Bar admitted that, in prosecuting cases initiated by judges, the Bar habitually commits acts of moral turpitude. These admissions, made only to avoid more damaging inferences by the legal community, establish as never before that the State Bar violates respondents' due-process rights and prosecutes at cross-purposes with its statutory public-protection role.

1. Concealed ex-parte communication.
The Konig case, an employment suit by a State Bar prosecutor, laid bare the State Bar's motives. The remarkable story is that the State Bar tried to attain two illicit objectives with one turpitudinous act by concealing from Kay that Judge Anello was the complaining witness. This was useful for two reasons. First, the State Bar secured unlimited time to prepare its frame-up. Second, the State Bar advanced its project of rehabilitating Judge Anello's reputation by concealing the judge's role in that project's initiation.

Konig: "If Judge Anello is not entitled to know why the NDC hasn't been filed and why he hasn't been able to reclaim his reputation publicly, then I think someone else needs to explain that to him." (Memo from Konig to superiors (August 4, 2003).)

Recouping a judge's reputation isn't an authorized purpose for State Bar prosecutions. It's a corrupt purpose: we don't even know the State Bar's reward for pleasing judges, and it's a little surprising that nobody in the legal-ethics world wants to find out. The evidence unearthed in the Konig case, records of conversations between Konig and his controllers, show then-prosecutor Konig in discussions with Judge Anello behind Kay's back, as neither Judge Anello nor the State Bar informed Kay, as the rules require, when Anello complained against Kay.

Konig's superiors were concerned that Konig was endangering Anello's confidentiality, and Konig freely expressed his concern with pleasing Anello.

Konig: "The question of who initiated this investigation has now been raised by one of the two individuals. As previously indicated, to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Letter from Konig to Judge Anello (January 7, 2003).)

Konig: "I was more interested in having [Kay] admit responsibility as that would serve as an apology to Judge Anello and that I would consider entirely stayed suspension if that occurred." (Memo from Konig (August 4, 2003).

Why would it damage the State Bar's case if Kay knew the State Bar was discussing a complaint against him? The reason is that the State Bar was illegally circumventing the five-year statute of limitations.

This is all amazing enough, but it isn't new. The new information, supplied by the State Bar in its opposition to Kay's petition for writ of review is that the Office of Chief Trial Counsel routinely violates its Rules of Procedure by not counting judges as "Complainants." This practice denies respondents the due limitations period.

It is the practice of the State Bar to treat all complaints initiated by Judges as SBI [State Bar Initiated] Complaints. (State Bar Opposition at p. 20.)

The California State Bar Rules of Procedure rule 2.28 defines "Complainants": "'Complainant' is a person whose communication generates an inquiry or a complaint.'" Rules of Procedure rule 2403(d) establishes that investigations initiated by a judge's allegations are Complainant-Initiated, not State Bar Initiated. The rule giving the statute of limitations is Rule 51(a): "A disciplinary proceeding based solely on a complainant's allegation of a violation of the State Bar act or Rules of Professional Conduct shall be initiated within five years from the date of the alleged violation."

By plain meaning, the rule requires that the State Bar treat complaints by judges as complainant generated, but the State Bar's misconduct is worse than it looks. The State Bar knows a judge is a Complainant under the Rules of Procedure; otherwise, why did Konig's supervisors say his public identification would jeopardize the case? The State Bar also knows that its deviant rule interpretations confuse respondents, but it takes no steps to clarify the meaning: with this miscue and others, the State Bar exploits respondents' confusion, another example where the State Bar cultivates ambiguous rules as a weapon against respondents being the ambiguous schedule for petitions for writ of review. Most importantly, the State Bar isn't even consistent in treating judges' complaints as SBI, as the State Bar's letter to Judge Anello offers the judge his choice in the matter, a practice even harder to square with the express language of the Rules of Procedure.

Konig: "to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two [Kay and cocounsel Dalton] will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Konig Letter to Judge Anello (January 7, 2003).)

2. Misrepresentation of Kay's unstained career.
Another claim the State Bar knows false is that Kay "has made a career out of histrionics designed to control and disrupt whatever courtroom he is in and unnecessarily prolong the process." (State Bar's Opposition at p. 31.) The charges will survive despite their implausibility only because a review court doesn't weigh evidence, but the State Bar has now put Kay's career at issue. The libelous outburst allows Kay to argue that a lawyer charged with repeated violation of court rules and decorum would have been found in contempt or at least sanctioned for such behavior. Kay's unblemished record refutes the State Bar's general case theory, which the quoted outburst summarizes.

The outburst compels readers and the reviewing court to ask, why did the judges who brought charges before the State Bar fail to sanction Kay at trial? Their excuses are lame. We hear Judge Weber supposedly avoided declaring a mistrial, despite scolding Kay for alleged misconduct, because the judge wasn't certain Kay prejudiced the jury.

When Judge Weber found that it was a close call whether defendants were denied a fair trial, she was not holding that it was a close call whether Petitioner committed misconduct, but whether his misconduct fundamentally prejudiced the other party's right to a fair trial. [Citation.] In fact, as she testified she found his conduct before her "appalling." (State Bar Opposition to Kay's Petition for Writ of Review at p. 21.)

Completely lacking in credibility (and irrelevant—who cares if Judge Weber was "appalled"). Repeated misconduct in various courtrooms always creating "close calls" —but never more—flies in the face of the laws of probability. Judge Anello even testified that Kay announced he wouldn't obey the judge's so-called orders. This announcement suffices to find contempt unless the commands weren't orders; but judicial one-upmanship, as any trial lawyer knows, is all too common when incompetent, obsessive-compulsive judges micromanage trials. The futile warnings of such judges don't constitute orders, but the State Bar's main "evidence" consisted of quoting these judges remonstrating with Kay and applying labels like "appalling." While factual implausibility isn't a review criterion, the eagerness of the State Bar to pursue a case so implausible, its smug rejection of Kay's concern for plausibility just because the State Bar can get away with it, deserves the widest condemnation from lawyers and ethicists.

3. Absurd charges alleging an ancient citation error.
The State Bar's readiness to pursue absurd charges based on technicalities is also demonstrated by the ridiculous charge concerning a case-law citation, yes, a single citation. The State Bar found that Kay willfully misled the court by offering an inapposite citation, when the document containing the citation was a) written by cocounsel; b) presented more than five years ago.

What does the State Bar hope to gain with a charge so absurd and so late: discipline for an alleged miscite five years ago, not even committed by Kay? The question can be answered precisely. To maintain its credibility, the State Bar Court labors to preserve a facade of substantial review. Had entry of default not precluded matter's hearing by the Review Department, review would eliminate the miscitation charge. The State Bar's routine practice includes charges it knows are absurd; the State Bar justifies this practice by what its prosecutors call "adversarial procedure." Including frivolous charges enables the State Bar Court's Review Department to appear to perform review. Including frivolous charges also often allows the State Bar Court to uphold the charges, despite the absence of proof, when a respondent defaults. Issuing charges the State Bar knows are unsustainable is as clear an example as you'll find anywhere of "moral turpitude." (Bus. & Prof. Code, § 6106.)

kanBARoo Court. 16th Installment. What happened?

Nobody ventured a prediction as to how the court would rule, and I can't say I blame you. The court was in a nice predicament, and who could say what it would do? If it entered my default, I'm out of court and the Hearing Department avoids the Review Department's interlocutory review. The cost, however, is setting me up to win on an appeal based — not on my theory that the Bar hasn't pled its case with specificity (which may or may not be mooted) — but on the concrete and specific facts of court's failure to protect my due process rights from the prosecutrix's incursions.

What was the alternative? If the court denied the motion to dismiss, it would be countenancing my accusations of deputy trial counsel's intermeddling. This would then require that it investigate and disbar her, to the shame of the State Bar and with uncalculated implications for my case and other cases she has handled. As close and as subordinating as the relations are between the office of the prosecutrix's boss and the judge, this was unlikely.

I'm now going to get the anticlimactic ending out of the way, to proceed without that pall to the completely unexpected and truly fascinating details. Then to the apperception that the case has matured sufficiently that I can see how I can win it. This case has moved beyond the point where one sets the stage so that favorable events can transpire. The anticlimactic ending is that the judge managed to deny the prosecutrix's motion to enter default based on an apparently technical fault in the prosecutrix's motion.

Boring in appearance; fascinating in essence. First, the court could avoid considering my charges of gross prosecutorial misconduct only because it never saw them. The court never received my opposition papers. The prosecutrix must have had the file copy intercepted or deflected, after receiving her service copy and finding herself inculpated. I find it hard to believe, but in assessing likelihoods, you have to follow the logic of the evidence.

What's fascinating about the way the judge justified denying the motion to enter default was that he was dead wrong about the technicality he invoked. The judge had before him an unopposed motion to enter default that he so strongly needed to deny that he concocted a transparently unsound reason to deny the home team's motion. The judge ruled that the motion was untimely, because it failed to allow the five days for service added to the time ordered by the court. In truth, not only the prosecutrix but I as well believed, and believed correctly, that since the court said 20 days from the order's filing, it meant exactly that, not 20 days from the order's service. Every paralegal knows the distinction.

There are so many things fishy about this that it would be tedious to list more than a couple. Why did the court grant the motion to shorten time, if the motion failed on its face because of untimeliness? Why did the court fail to condition the denial as “without prejudice to remaking the motion," if the court's real reason was mere untimeliness?

What the court did do was vacate the trial date, vacate the pretrial conference date, and set an OSC to consider sanctions for my failing to participate in discovery. I responded the next day (today) with a motion to reconsider the order for an OSC, in light of the "new facts" contained in my deflected opposition to the default. I attached a copy of the deflected opposition as an exhibit and mailed a copy with cover letter to the judge by certified mail, labeled "PERSONAL AND CONFIDENTIAL."

In the installment after the next, I'll discuss how this level of prosecutorial misconduct creates a straight tactical path to prevailing in this matter. The potential contrasts with the anemic pseudostrategies of Bar Establishment defense lawyers, who generally have spent years as deputy trial counsel for the State Bar, where they were thoroughly brainwashed. In the next installment, posted concurrently, I publish my "Motion to Dismiss the Notice of Disciplinary Charges for Failing to State Disciplinable Charges." It sets out the basic procedural legal theory that has gotten this case to this point, although my later papers include some more compelling authorities.

To best understand this blog:

* Consider reading installments 1-7, successively; then,

* Follow your interests.

kanBARoo Court. 14th Installment. Turning Point.

The California State Bar's Enforcement Division, Hearing Department, and Review Department share a common building, undermining any contemplated adversarial quality in their relations. The Enforcement Division and the Hearing Department reside on adjacent floors; the Hearing Department and the Review Department are on the same floor and share their clerical office. That office was the place where Deputy Trial Counsel Melanie J. Lawrence perpetrated a fraud against me and the court to try to defeat my petition for review. First, I'll describe what I know Ms. Lawrence did and why it is a serious wrong. Then, I'll set out how I know this account is factual and how I can prove it.

Ms. Lawrence meddled with the clerk's reception of my petition for review of my motion to dismiss and interfered with its filing. Specifically, she advised the clerk to reject my filing based on a supposed lack of a proof of service. Then, she created the appearance of deficiency by substituting her unsigned proof of service for the clerk's signed one to engineer a filing delay. Ms. Lawrence falsified a court document because she knows my legal position is correct, and she fears the review department will agree.

Ms. Lawrence committed two grades of moral turpitude. To distinguish them helps in perceiving just how despicable is Ms. Lawrence's conduct. In discussing the matter with the clerk, Ms. Lawrence breached a rule of legal ethics prohibiting ex parte communication. Counsel should funnel argument designed to persuade the court through authorized channels to avoid unfair influence and decisions taken without hearing both sides. Ex parte communication was the subject of the fifth installment, where I claimed these proscribed interactions must be prevalent but immensely hard to prove. State Bar respondents have alleged that ex parte communications violated their due-process rights, but without denying that ex parte communications pose a due-process issue, the courts have been unpersuaded of the ethical infractions.

Ex parte communication potentially denies a respondent due process but is far exceeded in its vileness by the second grade of moral turpitude. Ms. Lawrence colluded with or manipulated the clerk to dispose of the actual signed proof of service and to represent her own copy as the one I tried to file. This is frankly criminal conduct, and my being subjected to it could lead to a "dismissal in the interest of justice." This escalation might convince the Hearing Department, on the other hand, to avoid immediate embarrassment before the Review Department by entering the default Lawrence seeks. The fraud and my response to it in several motions and oppositions should prove a crisis point in the case, where the court either withdraws all confidence from the prosecutrix or closes ranks with her.

How did this prosecutrix become first proven ex parte communicator among the Office of the Chief Trial Counsel's minions? The proof itself is simple. I know I sent out only a single unexecuted proof of service, and that was the proof of service to Ms. Lawrence. I sent the court signed proofs of service but served the opposing party an unsigned one. This is my routine practice, according with law and logic better than the common practice of signing them all.

Many lawyers are unaware of this fine and ordinarily useless point of procedure, and I earlier surmised that Ms. Lawrence is among them. They think you need to sign all of the proofs, and finding hers unsigned, Ms. Lawrence ran for joy to her friend in the clerk's office. She handed the clerk the document and said it must be rejected for want of signature. Lawrence emphasized the rejection should be sent out that day, as the clerk mailed the rejection the day Lawrence received her service copy. The clerk accepted Lawrence's document as identical to the documents filed, packed them off to me, and disposed of the others.

If I am wrong, the prosecutrix can easily so prove by producing her unsigned copy of the proof of service. If her copy is not the one that the clerk returned, then she will have retained it as her file copy. Having committed this deceit, she will instead produce a duplicate copy of the document the clerk returned, distinguishable because, though unsigned, the proof is hand-dated.

Best to understand this blog:
· Consider reading installments 1-7 in succession;
· Then, follow your interests.

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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