kanBARoo Court. 51st Installment. Online Charges: The State Bar's Latest Power Grab

In the State Bar establishment's summer power play, the Board of Governors authorized Internet posting of the State Bar's mere allegations against a Member. For once, even the county state bar organizations protest, by opposing the Board of Governors' 18-4 decision. Dissenters focus on the threat to the reputations of innocent attorneys, who the State Bar says constitute 9% of its respondents, but the State Bar argues from the wrong statistic, grounded in tacitly assuming false charges' reputational harmlessness unless the accused is completely exonerated. Critics mostly accept the focus on the 9% statistic, despite its invalidity as a measure of wrongful harm to reputation.

The State Bar places the policy's critics in the unfavorable position of opposing transparent public administration and the public's right to access public information conveniently. Assuming a stance that seems to oppose the public welfare, the critics can succeed only by asserting that the web disclosures violate some basic right: according to legal ethicist Diane Karpman, the presumption of innocence. (Karpman, Online charges catch the good and the bad (August 2008) California Bar Journal.) She's right, but the argument is impossible to win. To prove that the posting violates the presumption of innocence, a respondent must show that the public disclosure is intended as punishment. (See Bell v. Wolfish (1979) 441 U.S. 520, 585 [dis. opn. Stevens, J.].) Inherently, the State Bar's punitive intent isn't hard to prove, shaming being a traditional means of punishment, but under Bell v. Wolfish, a reviewing court must find that the measure has no rational justification except as punishment, to conclude punishment without proof violated the presumption of innocence. (Id.)

The State Bar's hypocrisy in playing the public-protection card is shown by the contours of its new posting policy, the policy's anti-public interest direct effects, its internal contradictions. One of the most important public interests regarding legal practice is attorney-client confidentiality. As Karpman argues, the State Bar's new posting policy conflicts with the public interest by undermining confidentiality in matters where the accused attorney's clients haven't agreed to disclosure. (Karpman, supra.) The State Bar's expungement allowance for administrative suspensions, amended this summer for greater leniency, contradicts the State Bar's claim that the public's right to know is paramount. Most tellingly under the new posting policy, when the Member is completely exonerated, the rule requires removal of the NDC and the opinion dismissing it within 60 days. With the last rule, the State Bar disregards both attorney reputational interests and public informational interests, to favor the State Bar's self-protective instinct.

Supporting barriers to public information access yields the high ground to the State Bar. The new posting policy threatens innocent reputations only because the State Bar self-servingly proposes postable and unpostable categories that increase the weight of adverse information and strengthen the State Bar’s bargaining posture in disciplinary negotiations. The policy undemocratically hides private complaints filed with the State Bar, information that would show what investigations the State Bar omits, a matter publicly interesting. And the State Bar adds only minimal caveats when it posts the Notice of Disciplinary Charges, without warning, for example, that no court reviewed the allegations.

All public information should be available on the State Bar's web site, and all information related to disciplinary matters should be public. If the State Bar claims such posting is impractical, then it must admit that a selection process biases the posted information. Unless the State Bar will allow the public web access to all records related to discipline, offering up the Notice of Disciplinary charges before any court has seen it is not to inform the public but rather to attempt its influence. The Notice of Disciplinary Charges often fails to state disciplinable charges. Yet even exoneration of specific charges will fail to remove them, which endure in perpetuity, while within sixty days, the State Bar would excise proof exonerating a respondent of all charges.

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.