kanBARoo Court. 48th Installment. The Results Are in- The State Bar Court Is No Court at All

My case tests the Supreme Court's response in a State Bar disbarment matter when following the law conflicts with the Supreme Court's political interests. More than a test, the case has been an experiment, unethical except for the self-represented and, for those, universally deemed unwise by legally educated opinion. Pushing the procedural limits to guarantee an informative outcome, I compelled the Supreme Court to choose between approving a felony under color of law and, despite the State Bar Court's function as as the Supreme Court's administrative arm, becoming the vehicle for a State Bar scandal.

I conjectured the Supreme Court wouldn't accept the case's gross improprieties, but the disbarment order of September 10, 2008, refuted my conjecture. The outcome, nontheless, allows assessing Supreme Court review of State Bar matters. The State Bar Court does not, in any sense, function as a court because its overseer, the California Supreme Court, decides petitions for writs of review politically.

Here, the State Bar failed to serve its answer to my petition for writ of review. I moved to strike the unserved answer. The State Bar, while opposing my motion to strike, conceded improper service by not mentioning it and not explaining why the Bar twice failed to serve me properly. The State Bar didn't serve me even after my motion informed the Bar its service had miscarried. The State Bar, seemingly, preferred I not reply to its opposition. The Bar got wishes fulfilled when the Supreme Court denied the motion to strike and denied the petition for writ of review.

Blunders by the State Bar have consistently helped me establish key points, although once established, arguing from them has proven futile. When the case was before the Hearing Department, the prosecutrix's theft of documents allowed me to attack the State Bar's unjudicial practices, taking forms needing no proof for their classification. Yet, the Hearing Judge refused to make any findings. In the case before the Supreme Court, the State Bar demonstrated reckless disregard for a respondent's proper service. Yet the Supreme Court not only refrained from striking the motion, it did not even direct proper service, to allow for a reply. If the court could argue that I did not ask for alternative remedies, it cannot justify basing rulings on documents opposing counsel prevented me from seeing. The repeated occurrence of State Bar blunders and their lack of practical significance are related. The State Bar, having learned its mistakes are inconsequential, has lost even its ability to recognize them.

I will explore, in a subsequent Installment, why the State Bar Court appeared to function in a minimally judicial fashion, even though it really is no court at all. Deserving early mention and requiring revision are some of my suggestions for State Bar defense. I do not now think it possible to win by showing the Supreme Court that the State Bar Court lacks basic procedural integrity. When the State Bar's foundational practices are attacked with allegations that would impugn the State Bar Court's legitimacy, the Supreme Court will deny the petition for writ of review.

I'll continue discussing the implications of the nonjudicial character of the State Bar Court next Installment. Other than this series of final case-relevant Installments, kanBARoo Court's coverage of my case is complete, but kanBARoo Court — the only web site or blog dedicated to State Bar-law analysis (not reportage and journalistic commentary) — will continue its treatment of State Bar oppression.

kanBARoo Court. 47B Installment. The Logic of State Bar Proof-of-Service Fraud

Is faulty service standard-issue heavy artillery in the State Bar's arsenal or more like the atomic bomb, usable only in exigent circumstances? We can partly answer this question without direct evidence by comparing the forces constraining civil-practice attorneys and Bar counsel to serve documents faithfully. In civil practice serving the requests-for-admissions discovery tool poses the greatest temptation to cheat because of nonresponsiveness carrying a draconian consequence: a motion that all requests be deemed admitted, after which opposing party can usually obtain summary judgment. But even the most unethical attorneys don't falsely claim to serve requests for admission — except, perhaps, when their opponents are pro se non-attorneys — as a fraudulent win in civil court doesn't impart momentum comparable to a win in a State Bar matter. One reason, the waivers that Bar law imposes, in tandem with time pressure. When a State Bar respondent loses, the case continues at rapid clip, and respondent must either suffer default after refusing to participate or waive the rights respondent was asserting by motion or defending by opposition. Testing the State Bar's claims is too risky for most attorneys. The State Bar respondent's credibility deficit is another reason a fraudulently obtained State Bar victory carries advantages absent when a litigant commits extrinsic fraud in civil court. In a civil case if one attorney claims service and the other nonreceipt, the judge will accept the nonreceipt theory and assume loss in the mail, because the nonreceipt-theory's risk is smaller: unnecessary delay, not forfeiture.

Both realistic and doctrinal causes contribute to creating a different evidentiary balance for proving service in the State Bar Court. Realistically, many or most respondents are pro se and fighting for their professional lives, a predicament increasing their incentive to lie. Doctrinally, the tacit appearance-of-impropriety legal theory defines respondent as corrupt, lending little credence to respondent’s contentions when they contradict the State Bar's sworn declarations. State Bar respondents lack the leverage to contest fraudulent wins because their risks are too great or their courage too small. And they lack the credibility to garner more than half-hearted relief from setbacks due to unprovable service failure.

This analysis suggests that State-Bar-engineered service failures are more like heavy artillery than the atomic bomb. We should expect that fraudulent proof of service is common in State Bar Court, since extrinsic fraud is harder for a State Bar respondent to oppose than for a litigant in civil court. And if respondents often deny receipt of matter the State Bar claims it served, Bar counsel needn't fear injury to their reputation for truthfulness. The courts would anticipate that State Bar respondents will deny service, in already corrupt attorneys' desperate struggle for professional survival.

If so, the courts' anticipation rests on logical error. Their analysis doesn't follow the game-theoretic implications to their conclusion: where State Bar respondents are thought — accurately or not — to have a high propensity to lie, Bar counsel will lie with regularity. Although respondents may have the greater incentive to lie, Bar counsel have the lesser disincentive, since their honesty won't be questioned. The greater incentive of respondents thus creates the lesser disincentive for Bar counsel. Bar counsel's ability to lie with impunity renders State Bar proof-of-service fraud more common than many observers realize. Game theory, after all, is counter-intuitive.

To rectify, the State Bar's Rules of Procedure must contain stronger guarantees than provided by the Code of Civil Procedure. The State Bar Rules of Procedure should require the State Bar to prove service by certified mail. To the same end, service to the Office of the Chief Trial Counsel should be made through the Bar Court rather than by respondent, since the offices' proximity insures reliable, low-cost delivery.