64th Installment. The Philip E. Kay Calumny

kanBARoo court began with a case (mine) illustrating the State Bar's legal incompetence; today we begin to look at a case where the State Bar takes incompetence to its culmination in a discipline proceeding to disbar a lawyer because he is too competent. The 129-page Notice of Disciplinary Charges delves into the bowels of the trial process to reinforce biased judges' control by disbarring an attorney with demonstrated ability to persuade juries, despite these judges' best efforts to shield Kay's giant corporate opponents, which include Ralphs Grocery Stores and the international law firm Baker & McKenzie.

The Notice of Dislciplinary Charges summarizes the charges at paragraph 375:

By repeatedly making speaking objections, gratuitous comments, asking the identical or near identical question to questions that had been asked and/or objections sustained to, and arguing in front of the Gober I, Gober II, and Marsicz juries during the evidentiary phase of the trial; by repeating making motions in front of these juries, including motions for mistrial and a motion for a directed verdict, despite the courts' warnings and orders and sustaining of motions to strike and objections; by repeatedly making improper and false accusations against counsels and the courts; by repeatedly suggesting, implying, and directly stating to juries that there was other evidence of misconduct that he were prevented from presenting to these juries; that his clients were being denied a fair hearing; that the evidence of the opposing parties' misconduct was being improperly suppressed or hidden from the juries, in violation of court orders not to disclose information; by repeatedly being rude and unprofessional to the courts and opposing counsels, by repeatedly violating his duties as an officer of the court to act professionally and respectfully to the court, opposing counsels, and other parties; and by his repeated failure to abide by the court's orders and ruling, and assist in the pursuit of the court proceedings, respondent Kay wilfully committed an act or acts of moral turpitude, dishonesty, and corruption.

Ordinary courtroom tactics! Ever since a juvenile Sonia Sotomayor learned law by watching Perry Mason on TV, everyone has known that attorneys don't obey every judicial command or abide by every provision of the law of evidence. Any nonprofessional recalls how at the end of a strong line of inquiry, Perry or D.A. Burger would ask an improper question, only to withdraw it immediately. Like playing pinball, a trial lawyer must play close to the edge of losing by tilt. Unlike pinball, legal rule boundaries aren't mechanically fixed; they vary from court to court, for one reason because judges will hesitate to invoke their terrible contempt powers while they themselves commit misconduct. A pinball player hasn't tilted unless he forfeits; an attorney in open court hasn't culpably violated a court order unless held in contempt. The State Bar has become the instrument of biased judges seeking vindication proven unjustified by their reluctance to hold Philip Kay in contempt of court.


This Installment begins a series on the Philip E. Kay State Bar Matter. The following subinstallments will discuss the threat to all lawyers of the State Bar's ability to bring moral-turpitude charges for common trial tactics; the State Bar's fee-splitting charges; the significance of belated charging (7-year investigation of a matter based on public record); and more.

kanBARoo Court. Interlude 6. Making a federal case of it

My case, based on indisputable allegations of prosecutorial misconduct, proves due-process challenge strategies in disbarment cases shouldn't culminate in the California Supreme Court or below. My case tested and refuted the only theory on offer, alternative to bias, to explain the Supreme Court's post-1991 State Bar abstention. My theory said fundamental legal challenges seldom occurred in State Bar cases because the respondent's cost, incurred to avoid waiver — "involuntary enrollment inactive" — is too high.

I learn, as I get customers often owning greater working knowledge of the system than I, the causal picture is more complex. The determiner of State Bar Court decisions, when it wants to be, is the Board of Governors, the partly politically appointed, partly elected body that controls the State Bar. The incompetence of State Bar defense counsel also has an extra-legal complication, in a shadow organization of former State Bar trial counsel, an organization bestowed with a monopoly over striking deals, each sold at the going rate of a $50 thousand to $100 thousand in attorney's fee. These shadow-group State Bar defense attorneys, my sources tell me, compensate "referring" State Bar counsel with expensive gifts.

Despite the failure of a California Supreme Court strategy for fundamental legal attack, I remain convinced that only a fundamental attack can force dismissal in a disbarment case. The remaining realistic possibility for fundamental disbarment cases is attacking the U.S. Constitutional invalidity of parts of the State Bar Act in federal district court. A federal district court perspective depends on attributing statutory origin to one of the State Bar Court's systemic abuses. Informed customers say these abuses include, in addition to the State Bar's asserting monopoly power over defense counsel: pursuing charges the State Bar Investigator admits the State Bar knows are groundless; willfully withholding exculpatory evidence from in pro per respondents; and applying unlawful conditions, such as restricting potential counsel, to releasing exculpatory evidence. My case and experience adds others, such as deflecting or destroying court documents, proof of service fraud, and extortionate resignation demands.

My petition for rehearing offers no hope of resuscitating a California strategy. One reason, the petition's chances are slender at best. Why even slender? Because only the petition for rehearing contains a reply to a State Bar opposition. The State Bar troubled itself to avoid reply to its opposition to my petition for writ of review. Neither could I reply to the State Bar's opposition to my motion to strike, Rules of Court not permitting. When a court pays attention according to its preferences and acts according to its habits, a reply, as contained in my petition for rehearing, is the most important document. But if the Supreme Court were to grant my petition for rehearing, the court still had acted with such a degree of negligence that reliance on that court cannot ground a sound perspective. Reckless rubber-stamping seems the only explanation for apparent Supreme Court abstention, other than explaining it as invoking a surreptitious non-rebuttable presumption favoring the State Bar. My petition for rehearing in the California Supreme Court, consequently, doesn't even potentially rehabilitate the California high court as the target legal arbiter.

I am soliciting reports of State Bar prosecutorial misconduct, to help understand the State Bar's systemic due process violations. This information will help some of my customers and potentially an unknown number of California attorneys. Correspondents should feel free to e-mail reports anonymously.

kanBARoo Court. 46B Installment. "Bureaucratic Reflex" Defined

Of all the California Supreme Court State Bar cases, In re Nadrich (1988) 44 Cal.3d 271 gives the State Bar Court the high court's harshest and most on-point dressing down, defining "bureaucratic reflex" in passing. Beyond the gross defects in legal reasoning charged to the State Bar, the story reveals the State Bar's utter callousness. Nadrich's auto accident had inflicted perpetual severe pain, which to relieve, his physician prescribed Percodan, an opiate. The physician subsequently breached his medical duties by abandoning the patient, after cutting off the addictive pain reliever. Nadrich now had an addiction almost impossible to treat, the price, intolerable pain. Nadrich fell into despair and clinical depression, which forced him to close his law practice. To finance his Percodan habit and freedom from exceptional pain, at vastly inflated street prices, Nadrich accepted two offers to serve as intermediary in transactions to buy LSD.

The case could be a poster for bureaucratic reflex, although the court emphasized instead the Review Department’s refusal to consider mitigating circumstances. Despite the distorted focus, the Supreme Court describes the State Bar Court perceptively. The State Bar Court recommended disbarment for the:

sole stated reason [that]: "[Petitioner] was a professional dealer in illegal drugs for a substantial period of time and did not cease to be so until arrested. A lawyer who engages in such conduct should be disbarred." (In re Nadrich, supra, 44 Cal.3d at pp. 277-278.)

The Supreme Court denounced the State Bar Court’s reasoning in terms implying, from the first sentence, the Review Department was incompetent:

This statement betrays an oversimplified and unsupported view of the law. First, it suggests, incorrectly, that we discipline attorneys simply to punish them. [Citation.] (Cf. 37th Installment ["moralism"].) Second, it implies, also incorrectly, that we will not consider substantial mitigating circumstances in cases involving serious offenses. [Citation.] Third, it intimates, again incorrectly, that we apply rigid disciplinary standards, and that we analyze attorney discipline cases in the abstract instead of resolving each case on its own particular facts. (In re Nadrich, supra, 44 Cal.3d at p. 278 [emphasis added].)

The third—the one the case really is about—exactly defines "bureaucratic reflex."

kanBARoo Court. 23rd Installment. The Symbiosis between the State Bar and Inept Lawyers

The best legal theory for ostensibly defrauded persons conflicts with the State Bar’s approach to my case, but the State Bar’s infectious routinism infiltrates the general practice of law, depositing a vast gangrenous layer of ineptitude. Accordingly, the incompetent State Bar agrees with some inept lawyers in accepting the settlement agreement's lawfulness, despite Kim’s transgressions. Such incompetent lawyers work in symbiosis with the State Bar to obfuscate their failure to represent their clients.

Properly serving these defrauded persons’ interests requires a slightly creative application of the law of agency. The legal theory is that the insurer’s right and duty to send payments to my office depends on the existence of an attorney-client relationship between me and the insured, and the lack of such relationship gives defrauded persons the right to rescind their settlement agreement. Since no lawyer represented defrauded persons, one of the conditions precedent implied by law into the settlement agreement fails. It fails because an unlawful contract is void, as is the underpinning legal services contract between office manager Kim and defrauded persons. Because of extrinsic fraud, defrauded persons didn’t get a fair shot at negotiating their damages. Defrauded-persons’ attorneys could have placed the burden of financial loss on the insurance company.

In the case of a defrauded persons’ attorney, Scott A. Meyers, Esq., both self-interest and incompetence drove his failure to advance his clients’ interests. Meyers represents two distinct ostensibly defrauded persons, the first, personal injury claimants, and the second, a chiropractor claiming a lien on a defrauded person’s settlement. If Meyers had proceeded on the voided-settlement legal theory, his chiropractor could state no present claim, since a contingent-payment agreement governed the chiropractor's remuneration. This conflict between the clients is not the end of Meyers's misconduct. Lawyers lack patience for delaying recovery until some subsequent attorney of record can reap the reward, occasioning a second conflict of interest, this time between the personal injury claimants and Meyers personally.

How often do lawyers of Meyers’s ilk sabotage their clients’ interests, even without Meyers’s conflict of interest? The State Bar doctrinal line, in which accused lawyers must couch their mitigating remorse, is strict ethical liability for the acts of one’s staff, implying formation of an attorney-client contract despite subterfuge. Many lawyers without Meyers's corrupt tendencies will embrace this line, by osmosis and from wariness to undermine their own remorseful expressions, should their error or the State Bar’s caprice require.
Best to understand this blog:

• Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
• Make liberal use of hyperlinks; and then
• Follow your interests; or
• Follow the case.
  

kanBARoo Court. 21st Installment. The State Bar Demands Atonement.

This installment presents some court filings by the State Bar. First I will print and comment on, by way of update, the “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay; Memorandum of Points and Authorities.” My motion for reconsideration and request for immediate stay is here. My original opposition, appended to the motion for consideration, is here. Then we’ll look at a State Bar filing that is, depending on your mood, particularly funny or hideous.

------------------------------------------

Begin the State Bar's Document

Memorandum of points and authorities

On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. So, this Court does not have jurisdiction to order Respondent to appear for an Order to Show Cause. That remains the position of the State Bar. Without Waiving that position, the State Bar submits this opposition.

I. Respondent has failed to state any grounds for the Hearing Department to issue a stay of these proceedings.

Respondent cites no rule which provides for any generalized stay of proceedings in the Hearing Department. Stays of proceedings in the Hearing Department may only be granted under certain terms where a Respondent’s physical or mental condition is at issue or when a party files a petition for interlocutory review. (Rules 184 and 300(h)(1), Rule of Procedure of the State Bar of California). Neither circumstance applies in this matter. Rather, it appears as if Respondent seeks to renew his prior request for an immediate stay filed November 28, 2007, in which he asserted he intended to file a petition for interlocutory review but never properly did so. That request was denied by this Court on December 4, 2007, for want of good cause. Now, Respondent has waged a campaign against the assigned Deputy Trial Counsel and court clerk in which he alleges a variety of misdeeds and conspiracy theories that have no basis in fact. His unfounded, libelous, and absurd allegation do not provide any legal ground for this Court to grant a stay.

II. The Motion does not state new or different facts, circumstances or law and the Court’s decision does not contain any error of fact or law.

Grounds for a motion to reconsider are new or different facts, circumstances, or law or that the Court’s order or decision contains one or more errors of law or fact. (Rule 224(b) of the Rules of Procedure of the State Bar Court.)

Respondent seems only to assert that the Court did not consider his opposition to the State Bar’s Motion for Entry of Default, as his grounds for seeking reconsideration. In fact, he attaches as Exhibit A, his Opposition to Motion for Entry of Default. But here, the Order to Show Cause was issued after the State Bar made a Motion for Terminating Sanctions. The Court ordered Respondent to file an opposition to that motion on or before 5;00 p.m. on December 11, 2007. He did not. So, Respondent has failed to allege any grounds for the Court to reconsider its Order requiring Respondent to show cause as to why terminating sanctions should not be imposed.

Conclusion.

Respondent has failed to assert any proper grounds for relief. His motions should therefore, be denied.

END the State Bar's DOCUMENT

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The prosecutrix, as she mentions above, has filed her own motion for reconsideration. The State Bar has again involved itself in an impermissible procedural incompatibility, arguing in one motion that the court is without jurisdiction to order the OSC and in a contemporaneous opposition that the court should not reconsider its order.

The prosecutrix tries to pretend that nothing new has happened, but an immediate stay, based on interlocutory review, is justified, because my filing attempt was thwarted by foul play. The prosecutrix does not mention the evidence, her inability to produce the document in question. She has never offered to prove it in her possession or control. Yet she has admitted receiving it. My simple argument is that if she didn’t provide the clerk with the copy returned to me, without proof of service, then where is her copy? If she happened to lose it, did I just happen to know, or did I supposedly take the great risk of making a claim that, if false, she should easily refute? I don’t think she will be getting away with this, but if she can, the institution in question is no longer serving as a court of law.

So what is the court doing. Nothing. Fifteen days have passed since I filed my motion for reconsideration and request for immediate stay, sending a copy by certified mail to Judge Honn, and the court has said absolutely nothing. The court, no doubt, is waiting to sort matters out at the OSC it calendared for January 2, or else, to find a way to avoid the issue at that convocation. My anti-waiver strategy dictates that I not attend, and I shall not. I harbor no doubt that under the strong evidence presented of reversible misconduct, I am entitled to hear something from the court by this time. I cannot be required to participate in hearings, when I am denied ordinary access to the court through the clerk’s office in preparation.

The court ordered the OSC to determine whether my failure to cooperate with discovery should be entered as an aggravating factor. At such a hearing, the judge could easily deny even hearing my argument for a stay. Paranoid? To get a real idea of the police state thinking of State Bar Enforcement, consider the prosecutrix’s brief for the January 2, 2008 hearing. Alternatively, you may find these documents hilarious.


---------------------------------------

BEGIN State Bar's DOCUMENT

Statement of non-waiver

On December 17, 2007, the State Bar filed a Motion for Reconsideration of this Court’s denial of the State Bar’s Motion for Entry of Respondent’s Default and Order to Show Cause. In that Motion, the State Bar asserted that this Court has lost jurisdiction over this matter because all of the requirements for entry of Respondent’s default had been met, the clerk’s failure to enter his default was in error, and that because the requirements were met, the court lost jurisdiction to take any further action in this matter. That remains the position of the State Bar. Without waiving that position, the State Bar submits this brief at the Court’s invitation.

Respondent’s failure to cooperate in these proceeding should be considered an aggravating factor in determining the appropriate level of discipline.

Aggravating factors are not required to be separately charged but facts that could have formed the basis for an additional charge which are not in the Notice of Disciplinary Charges cannot be relied on in aggravation where, for example, a Respondent is found in default and not fairly put on notice that such facts will be relied on (Matter of Heiner) 1 Cal. State Bar Ct. Rptr. 301 [emphasis added].) Here, by way of this Court’s Order of December 12, 2007, Regarding Motion for Entry of Default and Order to Show Cause on Motion for Order Imposing Sanctions, Respondent has been put on notice that his failure to cooperate in these proceedings may be considered an aggravating factor.

Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct and lack of cooperation wit the State Bar during disciplinary proceedings. (Std. 1.2(b)(v), (vi).)

A respondent’s sporadic participation in disciplinary proceedings despite warnings from the judge demonstrates indifference to professional obligations and a substantial risk to the public. (Matter of Boyne (1993) 2 cal. State Bar Ct. Rptr. 389.) Also, a respondent’s use of specious and unsupported arguments in an attempt to evade culpability demonstrates a lack of appreciation for his misconduct and his obligations as an attorney, and the persistent lack of insight into the deficiencies of his professional behavior is an independent, aggravating factor (Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631.) So too is a respondent’s use of obstructive tactics during the disciplinary proceeding including abuse of discovery and frivolous motions and a respondent’s lack of appreciation of the necessity for timely, meaningful participation in the disciplinary process. (Matter of Varakin 91994) 3 cal. State Bar Ct. Rptr. 179; Matter of Hunter (1994) 3 cal. State Bar Ct. Rptr. 63.)

Here, Respondent has consistently failed to file a response pursuant to Rule 103, despite the rules requiring it and this Court’s orders that he do so. He has failed to participate in discovery, requiring the State Bar to file a Motion to Compel his deposition which was granted. Thereafter, he failed to appear for the deposition. He failed to file a pre-trial statement. He has filed numerous untimely and procedurally incorrect, motions in which he ha raised specious and unsupported arguments and has accused the assigned Deputy Trial Counsel and court clerk of a variety of misdeeds and conspiracies that have no basis in fact and that rise to the level of paranoia, absurdity, and libel. All of those factors can and should be considered aggravating in this Court’s recommendation of the appropriate level of discipline in this matter.

Conclusion

Respondent has had proper notice that uncharged misconduct may be considered by the Court in determining the appropriate level of discipline in this matter. There are a number of aggravating factors that the Court can and should find in recommending the appropriate level of discipline.

END State Bar's DOCUMENT

----------------------------------

A few points:

1) The State Bar thinks that without having proven the predicate, it can reasonably assail me for failing to “atone” for the consequences of my alleged misconduct;

2) Although I have filed numerous papers arguing that I cannot be required to participate in discovery until exhausting my challenges to the notice of disciplinary charges, the State Bar has never responded to those arguments, except by characterizing them as “specious.” Instead it pretends that it can condemn conduct without even considering the justifications offered, the sclerosis of a bureaucracy that has never had to fight for its positions fairly;

3) The State Bar claims I have presented no evidence for the prosecutrix’s misconduct, whereas in light of her failure to claim possession of the subject document while admitting receipt, I have actually proven that misconduct;

4) The State Bar repeatedly claims that I failed to file a timely responsive pleading, although the court has repeatedly accepted my documents and termed them responsive pleadings;

5) Very oddly, the State Bar insists on applying standards applicable to a clerk's default to a motion directed to the court. Apart from this being an incredibly stupid legal construction, it also amounts to an enraged insult directed at its own court, as the Hearing Department fails to deliver the Office of the Chief Trial Counsel's presumed entitlements. "You are no more than our clerk," screams the State Bar to the Hearing Department.

kanBARoo Court. Interlude 2. Discussion is better than monologue

Discussion of State Bar Court in relation to general prosecutorial misconduct.

http://tinyurl.com/236bnx

Published here with permission:

(My original comments are prefaced by '>>.' jl's comments are prefaced by '>.' My response to jl's comments have no preface.)

>>On Dec 10, 2:52 am, Stephen wrote: I have posted before about my personal
>>State Bar discipline case. Bluntly put, I charged that the State Bar
>>showed its incompetence and its dishonesty in manipulating its already
>>flawed procedural rules. The question crossed my mind, how far is the Bar
>>willing to go? Will it do anything to win? I didn't doubt the Bar's will,
>>but I did doubt its power, since ultimately, the Bar Court is subject to
>>review by the California Supreme Court. On the other hand, given the
>>power to do whatever it needed to win, it did not occur to me that its
>>incompetence might get in the way, even of winning by some form of
>>cheating.

> Do you have an absolute right of review or merely a right to petition
> for a writ of certiorari?

The right to a review by the Review Department of the State Bar Court is absolute. The Review Department's decision is reviewable only by certiorari to the California Supreme Court The review for which I filed was thus of right.

The Review Department and the Hearing Department, however, are both part of an integrated State Bar Court. The intermeddling clerk was acting for the Review Department, but sits in the same office with the Hearing Department clerks, even possibly sharing work.

> I have seen appellate courts crawl up trees backwards to avoid cert,
> despite official transcripts and records glaring with reversible
> error.

>>One never knows everything in advance. The State Bar has resorted to a
>>trick far cruder than I imagined it prepared to try. And it might be so
>>incompetent as to get caught in the process. The State Bar has
>>inadvertently provided me with proof of its dishonesty. The State Bar
>>trial counsel did nothing less than doctor court files to cause a
>>responsive pleading I tried to file to be rejected on technical grounds.
>>By substituting papers and destroying papers, it caused the clerk to
>>claim that I had filed a document without a proof of service and had
>>filed 4 copies instead of five. For these alleged sins, it rejected the
>>filing and destroyed all the documents I had sent to the clerk, putting
>>me in default and potentially out of court. Although the penalties it
>>tries to impose through the clerk's office are unlawful, that is far from
>>the most shocking aspect, because I can prove that to get this result,
>>the Deputy Trial Counsel had to substitute her own document version for
>>the one I sent to the clerk. This moreover is EASY TO PROVE. It boils
>>down to this simple question: Can the Deputy Trial Counsel produce a copy
>>her copy of the proof of service? How do I know whether it is or isn't
>>her copy? Each copy I sent out, whether signed or not, was dated by hand
>>in ink. You, readers, have little reason to take my word for what I can
>>prove. But you can wonder, why would I make an accusation that can so
>>easily be _disproven_ if untrue. Although my blog receives ample hits, no
>>one has commented. This confuses me. Isn't it obviously a matter of
>>import if the State Bar, that is charged with rooting out unethical
>>conduct, resorts to conduct not only unethical but frankly criminal? How
>>can this not have a tremendously bad affect on the whole practice of law,
>>affecting everyone in the end? Comments of any kind help me tremendously
>>in figuring things out. Please consider commenting at my latest
>>installment, which contains the actual motion I filed opposing the entry
>>of default that the State Bar engineered. The latest installment is
>>located at:

>> http://kanbaroo.blogspot.com/2007/12/kanbaroo-court-installment-15-pr...
>>
>> srd

> It looks as though, if you have proof, your opponent should herself be
> brought up before the bar.

Thank you for pointing this out. Of course, I know the offense is an ethical infraction, but I had not thought of actually filing a complaint with the State Bar.

What had occurred to me is filing a police report. While I now write briefs in all areas of law, my direct legal experience is limited to civil matters -- primarily in business litigation, with focus on breach of contract, and in personal injury. I don't know about the effectiveness of a police report in this matter.

A police report matter arose in another context. The events leading to the Bar's inquisition comprised a fraud conducted from my office, involving persons unknown to me, with whom I had not formed an attorney-client relationship. The defrauded were Korean-speaking persons, and the defrauders were Korean-speaking staff, who conversed among themselves in their native language. The State Bar argues that I should have reported the fraud to the police. This seemed a futile act, because I was not the direct victim of the fraud, and I lacked the evidence, which was in the hands of unknown defrauded persons.

In the present Bar fraud, I have the proof of service that I mailed to the offending Deputy Trial Counsel, but the main evidence is the prospective failure of that attorney to produce her copy of that document, that is, to produce an unsigned but hand-dated proof of service. Someone must request that she produce the document and inspect its date to determine that it is a reproduction. Who will undertake this investigation and perform it with integrity? Can the Presiding Judge of the State Bar Court be counted on first to undertake the investigation and then to make an honest report? It would be fairly easy, with perhaps limited potential repercussions, for an investigator falsely to report finding an original in Deputy Trial Counsel's possession. To make that determination, the investigator has to run a finger over the date, making a judgment, although an easy one that clerks perform routinely.

The likelihood of proper investigation depends on whether Deputy Trial Counsel acted independently. Did the Presiding Judge covertly instruct her to intermeddle? My blog recounts evidence of ex parte communication between the two. I lean toward thinking that the judge was in on it. Perhaps his permission was more general, and he might not have countenanced counsel's method, but only because he is smarter than she is, not necessarily more ethical. The Bar Court in practice is a closely integrated institution.

> It reminds me of Shakespeare's remark in _Measure for Measure_ where
> the jury "passing on the prisoner's life, may in the sworn twelve have
> a thief or two guiltier than him they try."

The Bar Court's offense here is no doubt more serious than any of mine, even as alleged. My actual offense would properly sound in general negligence in civil court. If the fraud were shown the result of my negligent supervision, one could argue that staff's fraud is a reasonably foreseeable consequence. It is not properly a matter of legal malpractice, since I formed no attorney-client relationship with the persons defrauded. Any negligence would be a violation of my general duty to use reasonable care to prevent injury, a duty having nothing specifically to do with the practice of law.

> We have found in our state that the official bar has been an
> employment repository for the inept and for scoundrels. Because of
> media pressure and the influence of wealthy parents our bar snatched
> the license of DA Mike Nifong, but sat inert and did nothing in even
> more alarming cases where corrupt prosecutors committed felonies to
> obtain murder convictions. Alan Gell was almost executed because of
> affirmative corruption by two prosecutors who barely got their wrists
> slapped by the bar.
>
> Scott Brewer and Kenneth Honeycutt were prosecutors who committed
> felonies to win a death row conviction of Jonathan Hoffman. Hoffman
> was later exonerated when it was discovered that the prosecutors hid
> from the defense, judge, and jury the lavish gifts they had bestowed
> on prosecution witnesses.

> The bar never touched these two corrupt prosecutors. The NC State Bar
> waited until the statute of limitations ran, and now those two
> scoundrels are untouchable. One of them even became a district court
> judge, and other one is still practicing law.
>
> The older I got and the more I practiced law, the more I saw it was
> politics, not law, that ruled the courthouses. You could call it the
> law of the jungle. And the politics of the courthouses are the black
> arts of malice, party loyalties, and faction. That's likely what you
> have to deal with.

I find an interesting question in the extent to which State Bar-enforcement problems reflect general problems with prosecution, exacerbated by the Bar's lesser competence, or on the other hand, represent a driving force.

May I have your permission to publish this discussion to my blog? Often discussion is more clarifying than monologue.

kanBARoo Court, 12th Installment. Lies of the State Bar

Even when you grasp that the California State Bar is oppressive and deceptive in pleading, you may remain incredulous that it lies outright. Yet trafficking in lies is its standard mode of operation. The State Bar's self-protective rules have perpetuated such incompetence that only by the lie can the State Bar hope to prevail.

The State Bar's Review Department remains unknown to me first-hand, and of it I venture no opinion. That will change, as I filed a Petition for Review. I also filed, as standard procedure, a Hearing Department motion to stay proceedings. Without a stay, the rush of events will moot the interlocutory review, grounded in the irreparable harm following from invasions of privacy unwarranted by proper notice of disciplinary charges, subjecting me to lawless State Bar fishing expeditions. Whether the State Bar has stated a disciplinary charge must be finally determined before the case continues.

As I expected, the Office of the Chief Trial Counsel opposed my motion for a stay. Tenacious procedural obstruction has always been the staple of incompetent lawyers, who, when blessed with power and entrusted with responsibility, seek support for their obstructionism in prevarication. Deputy Trial Counsel Melanie J. Lawrence writes in her opposition, "To date, Respondent has not filed a Response to the NDC." She adds the prevaricating footnote, "By Order dated November 9, 2007, the Court ordered Respondent to file a Response by November 25, 2007."

In fact the Hearing Department judge has always maintained that when the court orders filing a response, it means a responsive pleading. The court has also stated it will not issue advisory rulings. The court did not issue an advisory ruling to answer the NDC, when it ordered a response. Yet the Deputy Trial Counsel shamelessly misrepresents the procedural history to the court. The Rules of Procedure promote these lies, as they allow no reply brief to the Office of Chief Trial Counsel's opposition and provide for no oral argument.

So far I have violated no State Bar rules or California laws. Now readers shall get to witness an actual violation, although I maintain applying the rule here is unconstitutional. The rule states that settlement conference briefs are confidential, but I am going to disclose what Deputy Trial Counsel stated in her settlement brief. I shall disclose this confidential information because restraining my speech constrains my rights. Deputy Trial Counsel lied in her settlement proposal. She thought her lies would escape detection, because she knew I would not submit a rebuttal or attend the conference, consistent with my contending the court's ruling on November 9 stayed the proceeding until November 25.

Lawrence grasped at the opportunity to lie to the refereeing court. The distortions were numerous, but the overt lie concerned what are termed mitigating factors. Lawrence stated there were none, a lie.She knows of major mitigating factors, as I abundantly acquainted Lawrence with them, not as mitigating factors but as evidence of innocence:

1. Immediately upon discovering the fraud by staff, I closed my law office.
2. After recognizing that handling money is not my forte, I have not represented clients.

Mitigating factors do not concern me, because they apply only where guilty. Lawrence, however, lies about the mitigating factors to blacken my reputation with the judges and portray me as conscienceless.

Prosecutors are supposed to show greater ethical constraint than civil plaintiffs. Bar prosecutors, entitled to a measure of co-operation from respondents, might be expected to reciprocate by showing, not honesty, but a reluctance to perpetrate gross lies and deceit. Lawyers expecting respect for truth when they face the California State Bar are naive about that bureaucratic parasite.

kanBARoo Court, 2nd Installment, Don't Fear the State Bar

The stigma of prosecution by the California State Bar and the fear of aggravating the State Bar advocates' irritability dams up almost any public exposure, whether pertaining to the State Bar Court's Hearing Department or its Office of the Chief Trial Counsel. Hungry for information that threatens any lawyer's livelihood, many attorneys scan the entire Discipline section of the Bar Journal, pretending a voyeuristic curiosity about the Members so subjected, where the real and legitimate interest lies in the basis for the discipline imposed. Nothing else in the Journal proves to merit their attention, and the discussion of discipline is no more inherently illuminating. What might cause an honest lawyer to fall afoul of the State Bar? This is the usually unspoken and futile question lawyers address to their reading of the Bar Journal. Whereas the process of prosecution will determine the level of due process, the Bar Journal acquaints lawyers with only the result.

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest. The State Bar's incompetence should not excuse any complacency by attorneys or the public, as this kind of incompetence does not preclude numerous convictions. This paradox of the State Bar is the riddle that opens the way to understanding why the California State Bar is so incompetent. The paradox is that, incompetence notwithstanding, the State Bar can threaten honest practitioners.

The State Bar's incompetence grows from the absence of real controversies, that is to say, a dearth of seriously contested cases. The State Bar Court, at least through its Hearing Department, functions to avoid real controversies, not to hear them. Consider how the source of our law is the British common law, as it has been fed through the resolution of controversy, as it has evolved to a sophistication where many fundamental precepts have required only the most minute modification over decades, even centuries. The State Bar Court, however, can prevent the statement of controversies with sufficient explicitness to resolve them as matters of legal principle. Its mechanics consist of fear. A wrong tactical guess and an attorney finds himself involuntarily enrolled as inactive. Such a threat does not generate the bold yet small-scale innovations that drive the development of law. And where the law fails to develop in small matters, it must degenerate in large ones.

Bar law, like all law, must continually develop or else degenerate into bureaucratic reflex, but the legal framework governing the State Bar artificially inflates the need for rapid development at the same time as it systematically stymies it. An arcane case law, unavailable through common research tools, largely governs the State Bar Court. A proper respect for legal tradition and a wholesome acceptance of properly informed controversy — where lawyer-respondents know the governing law — would mandate adopting the Code of Civil Procedure, except where specifically amended by Bar rules. The State Bar does this right only for discovery rules. Otherwise, State Bar Court's "Rules of Procedure" wholly supersedes the Code of Civil Procedure, the former's cases confined to The State Bar Court Reporter, except where the State Bar Court’s extensive yet vague and ambiguous rules occasionally state otherwise.

This series ultimately targets the State Bar's simultaneously self-serving and self-defeating rules, buffering the State Bar Court from real controversy. The atrophy of legal thinking, puerility of legal conceptualization, and ham-handedness of execution — in short, the incompetence of the California State Bar's Office of the Chief Trial Counsel — is the concern of these installments. The next installment returns to the story that illustrates and proves this verdict.

• If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my thrice-weekly installments.

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kanBARoo Court, 1st Installment, The Outrageous State Bar

The California State Bar’s Office of the Chief Trial Counsel was awestruck and panic-stricken when it lost its motion for entry of default, in a direct test of its legal position against me, the pro se respondent in Case No. 05-R-04605, et. al.

I start the account in the middle, with the outrageous misconduct of the Office of the Chief Trial Counsel, through Deputy Trial Counsel Melanie J. Lawrence, Esq. The forum is the State Bar Court's Hearing Department, presided over by the Hon. Richard A. Honn. Today’s story is merely the beginning of the extensive coverage and analytic commentary I seek to provide regarding "In the Matter of Stephen R. Diamond, No. 183617, A Member of the State Bar," an action in which I am obviously an interested party.

What follows today is a small but revealing part of the story. If you thought the State Bar Court is simply a court like many others, think again.

1. I filed a motion to reconsider after the court denied my motion to dismiss the notice of Disciplinary Charges. That day, a Tuesday, I had brought my intent to move for reconsideration to the court's attention at an in-person status conference, where the court confirmed that this motion was a proper and timely responsive pleading.

2. I served a copy to the Deputy Trial Counsel. Then I delivered two copies to the filing clerk, to whose window other clerks had directed me. She took my motion to reconsider, inspected it carefully, and stamped my conformed copy “Received.”

3. Although I filed it Tuesday, the motion was not due until the following Monday. On that Monday, the Deputy Trial Attorney e-mailed me. In her words, "At this point you have failed to properly file any responsive document. So, I intend to ask the Court to enter your default."

4. The Deputy Trial Counsel lacked any awareness of the egregiousness of her misconduct. She admitted being served with the actual signed document Tuesday, waited till Monday to point out the oversight, and attempted to exploit it to take a default in a quasi-criminal proceeding, while refusing even to supply documentation.

5. In my opposition, I argued beyond a due process matter concerning notice, the obvious issue, but one fraught with procedural uncertainties. More fundamentally and effectively, I challenged the court's jurisdiction to reject a document for filing after the clerk had accepted it for filing. "The Clerk accepted respondent's motion for filing on September 4, and the court lacked jurisdiction to reject the same document on September 10." I stated of the motion to enter default, "The State Bar’s motion to for entry of default is frivolous, malicious, and outrageous."

6. The Hearing Department of the State Bar Court denied the Deputy Trial Counsel’s motion to enter default, as shocking as this outcome was to the Office of the Chief Trial Counsel. The State Bar Court’s stance during the hearing, however, showed enough bias to discredit it. The court ignored the misconduct of the Deputy Trial Counsel and focused its attention on my failure to recover some mail in my transit. The court declared that I now am "on a short leash." Courts have used the phrase "on a short leash” to mean maintaining tight management of a case. No neutral court would put such a general onus on a party to an action. The court did not acknowledge that the document’s acceptance by the clerk was dispositive of its status as filed and distinguished between “Received” and “Filed.” The court claimed that the whole court system made this distinction, a purported observation that the court thought sufficient justification. On its own initiative, the court effectively took judicial notice of this “fact,” without briefing on either its accuracy or relevance.

More than my case, I am concerned with general issues. The State Bar's method is to make outrageous charges without evidence and then seek evidence through undisciplined discovery. I intend to challenge its methods of work. I am convinced State Bar misconduct is standard. In future installments, I will tell more of this story, its background, and its unfolding. I can afford to be principled because I don't fear the State Bar, partly because my livelihood derives from contracting with lawyers to prepare legal briefs and devise legal theories.

This ongoing account contains the legal theory guiding my case before the State Bar.
 
·If you are interested in the story, the legal issues it raises, or its conclusions, keep reading my thrice-weekly installments.

· If you like this theory, my writing, or want to know more about what services I might provide for litigation and trial attorneys, see My Profile