kanBARoo Court. 17A Installment. Motion to Reconsider Denial of Dismissal Motion

Below is the motion for reconsideration, filed when the court denied my motion to dismiss

The argument in this motion for reconsideration provides less insight into the controversy's legal essence than the motion to dismiss, but it is also simpler, more direct, and based in on-point authority. I don't think a judge could reasonably deny it. Initially, the only repercussion suffered by the State Bar would be having to file a revised notice of disciplinary charges.

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.

Motion to Reconsider Order Denying Motion to Dismiss

(Date Order Filed: August 17, 2007)
(Rules of Procedure, rule 224)

:
:

Grounds
1. Issue
The Hearing Court exonerated the NDC because the evidence it alleges would prove the offenses. The NDC must not only provide evidence for the charges and designate the violated enactment but must also state the manner in which the alleged conduct violates the enactment. Should the Hearing Court reconsider its order denying the motion to dismiss, because the NDC fails throughout to allege the manner in which petitioner’s conduct violates the enactment?
2. The court’s error of law is the basis for the present motion
This motion is based on Rules of Procedure, rule 224(b)(2), which permits motions for reconsideration where petitioner believes the court has made an error of law.
The grounds for a motion for reconsideration are (1) new or different facts, circumstances or law, as that ground is applied in civil matters under Code of Civil Procedure section 1008; and/or (2) the order or decision contains one or more errors of fact and/or law based on the evidence already before the Court.
The Hearing Court erred in basing its denial on the following statement of law:

The facts alleged in the NDC, if proven, would constitute disciplinable offenses. The appropriate time for respondent to present them will be at the hearing on the merits.

Petitioner maintains that the above is an incorrect statement of the law because it contradicts governing Supreme Court holdings. The holding of this court is that the allegations alleged suffice because the allegations, if proven, would establish a disciplinable offense. The Supreme Court, however, has repeatedly held that the NDC must include not only a description of the offending conduct and the enactment it violates, but also the manner in which the conduct violates the enactment. A typical Supreme Court holding in this line of cases is:

Once again we are constrained to call to the attention of the State Bar Court the importance of identifying with specificity both the rule or statutory provision that underlies each charge and the manner in which the conduct allegedly violated that rule or statutory provision. While petitioner here does not complain of any due process violation in lack of notice, this specificity is also essential to meaningful review of the recommendation of the State Bar Court. [Citations.]

(Baker v. State Bar (1989) 49 Cal.3d 804, 816.)
The Supreme Court holds that each charge must contain a description of the manner in which the alleged conduct violates the enactment, not only for proper review but also to afford the California due process rights that grant sufficient notice of charges.
3. Other considerations warrant reconsideration
A. The court misapprehended petitioner’s basis for the motion to dismiss.
Petitioner based nothing on the “Statement of the Case” in petitioner’s pure legal argument for dismissing the NDC. The court apparently thought petitioner was making an argument based on extrinsic facts.
B. Petitioner has subsequently located substantially stronger authority than that previously cited.
This motion for reconsideration contains law unknown to Petitioner at the time of filing the Motion to Dismiss. This law supports petitioner's argument more strongly and directly than cases previously cited. The law includes Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar of California (1990) 51 Cal.3d 609; Baker v. State Bar of California (1989)al.3d 804; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968. In these cases, the Supreme Court clarifies this requirement for pleading the manner in which the offending conduct violates the statutes or rules.

Argument

The due process requirements for the State Bar Court are those either contained in the Rules of Procedure or those comprising the general rules of due process. The requirements for pleading are treated at Rules of Practice, rule 101. These rules are due process rules because they relate to notice, notice being perhaps the most general rule of due process.
1. The NDC must link alleged conduct and enactment to state a disciplinable offense
Contrary to the contentions of the State Bar and of the State Bar Court, merely reciting the evidence that would prove the violation does not suffice to state a disciplinable offense. Rather, the charges must contain a valid explanation linking the alleged conduct to the allegedly violated enactment. As the Supreme Court voiced its frustration with this pleading issue[1]:

Once again we are constrained to call to the attention of the State Bar Court the importance of identifying with specificity both the rule or statutory provision that underlies each charge and the manner in which the conduct allegedly violated that rule or statutory provision. While petitioner here does not complain of any due process violation in lack of notice, this specificity is also essential to meaningful review of the recommendation of the State Bar Court. [Citations.]

(Baker v. State Bar (1989) 49 Cal.3d 804, 816.)
The Supreme Court restated this admonition in Sugarman v. State Bar of California (1990) 51 Cal. 3d 609, 618), and it had predecessors in Maltaman v. State Bar (1987) 43 Cal.3d 924, 931 and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968.
A. The effect of the omission is pervasive
The failure to plead the manner in which the alleged conduct violates a specific statute infects the entire complaint. In no count does the State Bar make the required linkage.
While the omission is pervasive, and charges must always be alleged with specificity, the courts have provided additional guidelines to which allegations must conform. In other instances, what information is necessary for the parties to provide can be determined from the complaint as a whole. Here, case law has established requirements for alleging aiding and abetting, as a matter of general due process. The need to allege how the client relationship was established can appear from the case as a whole.
B. California due process requires pleading and proving scienter for aiding and abetting.
The argument is straightforward. The NDC must allege offenses factually and specifically. The courts have held that aiding and abetting necessarily involves scienter. Thus, factual pleading must include pleading all the elements of aiding and abetting. Failing to plead scienter leaves unstated the actual link between alleged conduct and rule violated. Not to allege knowledge of purpose is to leave the linkage unstated, as admonished against by the Supreme Court, because scienter[2] is part of the necessary explanation of the manner of violation of the enactment.
C. The case requires pleading formation of an attorney-client relationship.
Any sufficiently informative explanation of how the conduct here alleged violates statutes or rules cannot avoid expressly alleging the formation of a client-attorney relationship with Defrauded Persons[3]. The enactments petitioner allegedly violated are often statutes designed to protect clients. The NDC admits the indirect formation of the attorney-client relationship. Because of this at-most indirect formation of the attorney-client relationship, the manner the alleged conduct violates the enactments cannot be explained without factually pleading the relationship’s manner of formation. That is a necessary part of the chain of explanation.
2. Responding to the State Bar’s Opposition to Motion to Dismiss further clarifies the issues.
Respondent State Bar made several arguments in the State Bar's Opposition to the Motion to Dismiss that are relevant to the motion to reconsider.
A. Literal pleading of all the elements expressly stated by statute does not guarantee stating a disciplinable offense.
The State Bar argued that since Rules of Professional Conduct, Rule 1-300(A), does not include scienter as an element, it is unnecessary to plead it. Pleading requirements often derive from case law. If the law in question is statutory rather than codified common law, it must always be pled specifically. Insofar as the statutes reference common law concepts, these must be pleaded with full specificity too.
As applied to the aiding and abetting charges, The State Bar argues:

With that general background pled, each of counts one, seven, seventeen, and twenty-one, plead that a client employed Respondent, through Kim and staff, to represent him/her in a legal matter… Respondent may choose to argue in his defense that he did not know Kim and his associates were engaged in wrongful conduct, all that is required to plead the charge is Respondent's willfulness in aiding another person or entity in the unauthorized practice of law.

While the State Bar announces that the pleading is sufficient, it supplies no authority in support. The authority for the alternative view espoused by petitioner derives from these propositions:
· The NDC must be pled specifically and factually (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016);
· Specific and factual pleading of aiding and abetting in California includes scienter. (People v. Tillotson (2007) __Cal.App.4th__).
B. Different forms of contract makes specific allegation more important, not less important.
The State Bar points out that various manner of contracting is possible, an observation that actually supports petitioner's argument. The Supreme Court has pointed out that the manner in which the conduct violates the enactment must be specified. If the State Bar responds that there are various manners of contracting, then it must explain which manner of contracting it alleges of petitioner. In what manner did petitioner form a contract with Defrauded Persons, whom the State Bar designates 'Clients'?
C. More is needed than the facts proving an offense.
The State Bar argues that the facts alleged suffice to convict, hence are sufficient to state a disciplinable charge. These papers have already treated this issue.
D. The State Bar has not properly alleged petitioner’s formation of a partnership with a non-lawyer.
Petitioner established that the State Bar has not properly alleged partnership with a non-lawyer. The allegations simply do not correspond to the definition of “partnership” in California. This controversy was not the subject of any commentary in the court order. Even if the State Bar Court decided this was the only error in the NDC, the court should have granted the motion to dismiss under accepted procedures. (See In re McCarthy (2002) No. 96-O-00528 [Motion to dismiss NDC can apply to a single count].)

Conclusion

The legal issues are difficult because of the amorphousness of State Bar Court pleading requirements, which have not been subject to extensive construal, despite some patent ambiguities.[4] The court should resolve the legal issues properly. The court should not delay resolution until the hearing on the merits. The court should not require petitioner to face charges that fail to state disciplinable offenses.

Dated:______



By:
Legal Research & Writing Service
Stephen R. Diamond

[1] This issue is identical in substance to petitioner’s argument in the Motion to Dismiss that the NDC should allege ultimate facts. This formulation uses different terms of art, here, terms of art used by the most dispositive authority.
[2] Henceforth, “scienter” will be employed as shorthand for specific knowledge of the perpetrator’s purpose.
[3] Shorthand adopted in Motion to Dismiss for individuals defrauded by Kim and Shin.
[4] The text of Rules of Procedure, rule 262, does not reveal, for example, that a motion to dismiss can be directed against specific counts.

kanBARoo Court. 17th Installment. Original Motion to Dismiss

This is a copy of my Motion to Dismiss based on pleading insufficiencies. Potential customers can consider it a work sample. [Firefox, Opera, and Safari show formatting better than Internet Explorer.]

____________________________________

Stephen R. Diamond (State Bar No: 183617)

Legal Research & Writing Service

Supplier of Legal Theories

61967A Begonia PL

Joshua Tree, California 92252-2106

Telephone: (760) 366-7920
Facsimile: (866) 392-4866
In Pro Per

The State Bar Court

Hearing Department - Los Angeles

Table of Contents

1. Charges predicated on aiding and abetting wrongful conduct uniformly fail to allege that respondent knew his staff’s specific unlawful purpose. [Pertains to Counts 1-26, 28.] ...........................................................................6

A. To charge aiding and abetting the unlawful practice of law, the State Bar must allege that respondent knew Kim and Shin's specific wrongful purpose. [Pertains to Count 1.] ........................................................................................ 6

(1) A person aids and abets only when he acts with
knowledge of
the wronful purpose of the perpetrator.
[Pertains to Count
1].......................................................................6

(2) The NDC fails to satisfy
the Bar Court’s Rules of Procedure, rule 101 (b)(2), pleading “facts
constituting the alleged violations,” which means pleading ultimate facts.
[Pertains to Count
1.].....................................................................7

B. Where the NDC states or implies that respondent willfully acted through J. B. Kim or his colleagues, the predicate that respondent aided or abetted Kim remains unpleaded. [Pertains to Count 1-26, 28.]........................................................................... 8

2. Count 27, formation of a partnership with a non-lawyer, employs an invalid definition of “partnership.”
[Pertains to Count 27.]......................................................................................9

3. All charges predicated on an attorney's duty to clients fail to demonstrate the formation of an attorney-client relationship with Defrauded Persons.
[Pertains to Counts 1 - 26.]...............................................................................9

Table of Authorities

Cases

B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823........................................................ 7

Chambers v. Kay (2002) 29 Cal.4th 142............................................................................. 9

Committee on Children's Television Inc. v. General Foods Corp.(1983) 35 Cal.3d 197. 7

Fox v. Pollack (1986) 181 Cal.App.3d 954....................................................................... 10

Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861............................................ 10

People v. Beeman (1984) 35 Cal.3d 547............................................................................ 6

People v. Coria (1999) 21 Cal.4th 868............................................................................. 11

People v. Tillotson (2007) __Cal.App.4^th__........................................................................ 6

Statutes

Code Civ. Proc., § 425.10, subd. (a)(1)............................................................................... 7

Rules

Rules of Procedure, rule 101 (b)(2)...................................................................................... 7

Rules of Professional Conduct, rule 1-310......................................................................... 4

Statement of the Case

Respondent hoped to test in practice his theoretical ideas concerning the effective delivery of legal services to non-mainstream cultures. If necessary, the enterprise would also test respondent's interpretation of rule 1-310 of the Rules of Professional Conduct, because of the contractual terms on which respondent ventured. J.B. Kim agreed to fund and staff the office operations and provide a skilled negotiator. Kim would report directly to respondent, and respondent would have ultimate control of the office and complete control of the practice of law within it. Respondent, viscerally averse to the mechanics of financial management and effectively incompetent in their execution, sought to delegate the operational responsibility for keeping the books, while maintaining a robust system to monitor Kim’s compliance.

Respondent’s favorable bargaining position allowed respondent to negotiate these terms. Kim wanted to remain in the business of law-office support, where Kim had 15 years of experience and public service awards in helping deliver legal services to the Korean community. Kim’s crisis arose when the attorney who had employed him, James Chu, Esq., decided to exit the practice of law.[1] Respondent’s willingness to accept minimal remuneration also enhanced his bargaining position. Respondent received $5,000 per month.

Kim’s acts of frank criminality undermined any pristine test of the legal services delivery system, as Kim ensnared some eight Korean immigrants and one non-Korean (“Defrauded Persons,” hereafter), who allowed or suffered the unlawful prosecution of their lawsuits by non-attorneys, who received no supervision on these secret cases. Kim conspired with respondent’s staff to keep Kim’s criminal conduct secret. Having stolen their right to representation by a lawyer, Kim then proceeded to rob these Defrauded Persons’ money.

Kim, Shin, and colleagues plotted undetected by respondent by using their native language for office communication. Respondent--relying on his clients to report any complaints, problems, or anomalies--thought the absence of client complaints verified the operation’s correctitude [2] and did not entertain the possibility that each and every employee would cooperate in keeping Kim’s operation secret. Kim had only recently hired most of the staff, whom Kim and respondent instructed on respondent’s ultimate authority. When respondent finally received a complaint from Scott Meyers, Esq., despite the fraudulent and extortionate character of Meyers’s demands, respondent immediately investigated. Finding he could not rely on his staff, respondent promptly closed his office.

Argument

The dispositive questions in this case are questions of fact about respondent’s knowledge of wrongdoing and questions of law about respondent’s duties. The faults in pleading the Notice of Disciplinary Charges (NDC) obstruct direct attack, because the State Bar creates a form of strict ethical liability for all transgressions conducted out of the attorney's office or involving the use of his trust account. The NDC shows no regard for the state of the attorney’s actual knowledge of the unlawful conduct, except to assert that respondent’s violations were "willful." The Bar’s theory and logic are that the events happened, therefore respondent allowed them to happen; therefore he aided and abetted Kim and Shin’s thievery.

1. Charges predicated on aiding and abetting wrongful conduct uniformly fail to allege that respondent knew his staff’s specific unlawful purpose.
[Pertains to Counts 1-26, 28.]

The complaint consists of 26 counts involving approximately nine Defrauded Persons and two general counts. Count 1, aiding and abetting the unauthorized practice of law in the Nan Young Yoo case, is the most explicit and provides a model for the others, whose assumptions are not clearly stated. The pleading of aiding and abetting the unlawful practice of law suffers from the same defect of the others containing an aiding and abetting predicate, as most do, although in form suppressed, perhaps disguised.

A. To charge aiding and abetting the unlawful practice of law, the State Bar must allege that respondent knew Kim and Shin's specific wrongful purpose.
[Pertains to Count 1.]

(1) A person aids and abets only when he acts with knowledge of the wrongful purpose of the perpetrator.

A common defect in California pleading involves substituting a combination of legal conclusions combined with evidentiary facts for the ultimate facts required under California procedural law. Partly because of this unartful pleading, the complaint fails to allege directly all the necessary components for disciplinable offenses involving aiding and abetting.

A person aids and abets when he or she, (1) acting with knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Tillotson (2007) __Cal.App.4^th__; People v. Beeman (1984) 35 Cal.3d 547, 561.)

Aiding and abetting requires knowledge of the unlawful purpose of the perpetrator. The knowledge required is knowledge of the specific unlawful purpose, not knowledge of the mere intent to engage in some unlawful conduct. (People v. Beeman, supra, 35 Cal.3d at p. 560.) The NDC alleges neither.

(2) The NDC fails to satisfy the Bar Court Rules of Procedure, rule 101 (b)(2), pleading “facts constituting the alleged violations,” which means pleading ultimate facts.
[Pertains to all Counts.]

The pleading of ultimate facts derives from Code of Civil Procedure, which calls for "[a] statement of the facts constituting the cause of action in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1). [emphasis added]; Committee on Children's Television Inc. v. General Foods Corp.(1983) 35 Cal.3d 197, 212.)]” The facts pleaded are ultimate in the sense that they constitute the cause of action.

The Bar Court’s Rules of Procedure, rule 101 (b)(2), requires that the NDC “Contain a statement of facts constituting the alleged violations.” (Ibid. [emphasis added].) The use of the term “constituting,” identical to the term appearing in Code of Civil Procedure section 425.10, subdivision (a)(1), proves that the drafters intended that the NDC plead ultimate facts. This is the language in the Rules themselves, linking that code section to the practice of ultimate pleading. (See Committee on Children’s Television, Inc. v. General Foods Corp. , supra, 35 Cal.3d at p. 212.)

B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823 illustrates the requirement for pleading ultimate facts. B.L.M filed for negligent misrepresentation, among other claims, against the law firm Sabo & Deitsch. The complaint alleged that Sabo & Deitsch, charged with responsibility for the legal work to implement a city building project, negligently represented that the project could go ahead because particular favorable regulatory conditions prevailed. Yet despite the clear evidentiary link between the conduct alleged and the cause of action pleaded, the court sustained Sabo & Deitsch’s demurrer that the complaint failed to allege that BLM reasonably relied on Sabo & Deitsch. The complaint did not directly allege reasonable reliance as an ultimate fact.

Evidentiary facts, by contrast, are facts that the plaintiff would use to prove the charge. Paragraph 9 states the legal conclusion that respondent aided and abetted the unauthorized practice of law. Paragraphs 10 to 18 of the NDC allege various illegal acts of respondent’s staff, acts constituting the illegal practice of law by staff members. No doubt the Bar intends to use these facts to prove respondent engaged in the illegal practice of law. The Bar may even believe that such evidence proves clearly and convincingly that respondent had engaged in aiding and abetting the illegal practice of law. Regardless, the paragraphs contain only the chaff recitations of evidentiary facts bereft of the wheat, ultimate fact. The State Bar nowhere alleges that respondent knew of the occurrence of the illegal acts charged or the existence of Defrauded Persons’ cases.

B. Where the NDC states or implies that respondent willfully acted through J. B. Kim or his colleagues, the predicate that respondent aided or abetted Kim remains unpleaded.
[Pertains to Count 1-26, 28.]

Each case’s remaining charges imply an aiding and abetting predicate. In their present form, moreover, these other counts contradict the charge for aiding and abetting the unauthorized practice of law, as the allegations supporting the unauthorized practice charge admit that Kim handled the checks. Respondent could not have willfully failed to notify client of the receipt of the funds, since he lacked knowledge of their receipt. The unstated predicate is that respondent aided Kim’s evading the immediate disclosure requirement. An aider and abettor shares equal guilt with the principal, and in substance this charge attempts to allege that respondent aided and abetted Kim in this purpose. To allege aiding and abetting, the Bar must allege that respondent knew Kim’s intent to withhold information about receipt of funds.

The same argument applies to the counts Failure to Maintain Client Funds in Trust Account, Failure to Respond to Client Inquiries, Failure to Inform Client of Significant Development, and Failure to Release File. The State Bar alleges willful violation of the Rules of Professional Conduct, and as such, the charges must involve at least a level of culpability equal to the principal. Particularly since the NDC as a whole admits that respondent was not the principal in these transgressions, the NDC must support charges of willful violation with allegations that respondent knew Kim intended to commit these specific transgressions.

Since these willful acts bottom charges of moral turpitude, the facts pleaded fail in sufficiency to state a charge for moral turpitude.

2. Count 27, formation of a partnership with a non-lawyer, employs an invalid definition of “partnership.” [Pertains to Count 27.]

Only Count twenty-seven breaks the pattern of alleging aiding and abetting offenses without alleging ultimate facts in support. [3] The Bar has not properly alleged the formation of a partnership.

Defining “partnership” in the context of another provision of the Rules of Professional Conduct, the Supreme Court stated, "Generally, a partnership connotes co-ownership in partnership property, with a sharing in the profits and losses of a continuing business. [Citation.] (Chambers v. Kay (2002) 29 Cal.4th 142, 151.) None of the alleged facts in Count twenty-seven indicates sharing of profits and losses or co-ownership. The facts alleged, if supported by substantial evidence, would undoubtedly constitute an alleged wrongdoing of such magnitude that if proven should warrant summary disbarment, but the offense is not the formation of a partnership!

3. All counts predicated on an attorney’s duty to clients fail to demonstrate the formation of an attorney-client relationship with Defrauded Persons. [Pertains to Counts 1-26.]

Characterizing a Defrauded Person receiving bogus legal services from Kim as a “client” is not a fact but a legal conclusion, because a person’s status as a client depends completely upon the formation of an attorney-client relationship. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 959 [“To state the obvious, an attorney's duty to his or her client depends on the existence of an attorney-client relationship. If that relationship does not exist, the fiduciary duty to a client does not arise.”]) Contract creates this relationship (id. at p. 960) [4], and contract interpretation poses questions of law. (Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861, 865.) The NDC avers the legal conclusion that the Defrauded Persons had formed an attorney-client relationship, but pleads no ultimate facts so demonstrating. The NDC, for example, alleges that Defrauded Persons retained respondent through Kim, but pleads no facts showing that respondent ratified any of the unlawful contracts for pseudo-legal services that Kim offered and Defrauded Persons accepted.

Paragraph 10, for example, states, “Nan Young Yoo employed Respondent, through Kim and staff at the Wilshire Blvd. office, to represent her in a personal injury matter arising out of a January 1, 2005 injury.” While it adequately appears that Yoo met with Kim, who represented that he had authority to accept the case, the NDC pleads no facts to demonstrate Kim actually enjoyed this authority. [5]

Conclusion

The failure to plead facts demonstrating that respondent aided and abetted Kim and Shin’s fraud and the failure to plead facts demonstrating that respondent formed an attorney-client relationship with Defrauded Persons reflect the unwillingness of the State Bar even to contemplate the mens rea of the alleged offenses or their application to this case. (See People v. Coria (1999) 21 Cal.4th 868, 876 [“So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.”] The court should require the State Bar to:

• State the ultimate facts the State Bar must prove;
• Tailor the counts to the facts the State Bar thinks it has probable cause
  to assert: OR
• Dismiss this action.

Dated: ______

By:	Legal Research & Writing Service Supplier of Legal Theories

Stephen R. Diamond

Declaration Supporting Motion to Dismiss

1. I, Stephen R. Diamond, am the respondent in these actions and a Member of the California State Bar.
2. All statements contained in the Statement of the Case are true, as based either on respondent’s personal knowledge or sources of information and belief that respondent knows are reliable.
3. I declare on penalty of perjury under the laws of the State of California that the foregoing declaration is true and correct.

Executed in Los Angeles, California on August 5, 2007.

__________________________________

Stephen R. Diamond, Declarant

---

[1]Kim and staff did not work for respondent full time, as they continued to contract with Chu to wind down his office and help him close his case. Respondent's investigation of Kim's misconduct in respondent's office triggered Chu's concern. Chu discovered embezzlement of funds totaling some $30,000.

[2]Most clients lacked knowledge of English, but they knew a translator was readily available for their communication with respondent.

[3]The final Count twenty-eight returns to the pattern by alleging “permitting misuse.” The Bar appears often to use the word “permitting” to achieve the force of aiding and abetting without pleading respondent’s knowledge of the specific wrongful intent.

[4]“Except for those situations where an attorney is appointed by the court, the attorney-client relationship is created by some form of contract, express or implied, formal or informal. [Citation.]”

[5The face of the pleading further reveals that Yoo was put on notice that no contract with an attorney had actually been formed since the NDC admits that Yoo did not receive a retainer agreement signed by respondent, and Yoo knew that Kim was not a lawyer. She never communicated with respondent about her case until after non-lawyers settled the case. Could she have been ignorant that Kim was running a fraud?

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. 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. 15th Installment. PREDICT the Court's Ruling

TEXT of ACTUAL ARGUMENT FILED - Opposing Entry of Default

Stephen R. Diamond (State Bar No: 183617)Legal Research & Writing Service
Supplier of Legal Theories
61967A Begonia Place
oshua Tree, California 92252
Telephone: (760) 366-7920
Facsimile: (866) 392-4866
In 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 for Entry of Default
1. Respondent substantially complied with the court's order to file a responsive pleading.
Ms. Lawrence pretends that respondent “failed” to file an answer to the NDC because he wants to prolong these proceedings. Lawrence not only makes this accusation but also states it as though it were an obvious truth. She has repeated this accusation so many times that it takes on the character of a big lie, seeming to warrant belief by virtue of its tenacity alone. What else could possibly drive a respondent to avoid responding to an NDC for 144 days besides enjoying disciplinary proceedings so much that he wants to prolong them?
The true explanation of respondent’s conduct need not invoke perverse or masochistic motives. Respondent resists answering the NDC because he thinks his objections to it are correct, and the operative NDC prejudices his case. He thinks proceeding based on so seriously flawed a pleading would do him irreparable injury and wants at least one court of review to consider his legal arguments. Respondent also believes that his objections have jurisprudential significance. Filing the NDC would moot any review, and the courts would never hear respondent’s general arguments.
Respondent has not “failed” to file a responsive pleading. He has not yet filed an answer to the NDC, but at each turn, he has responded by filing the logical next pleading. Respondent in most instances filed these documents promptly, and has a strong excuse for 2-day tardiness in attempting to file the latest responsive pleading, a petition for review. Since the court and opposing counsel received a service copy of that document, the court is aware that it represented a serious attempt at compliance with the court order that he file a responsive pleading.
Assuming for the moment, contrary to fact, that respondent’s inadvertence caused the clerk to reject respondent’s petition for review, the State Bar still has provided no grounds for a motion for default. When the State Bar filed the present motion, respondent’s petition was received but unfiled in the clerk’s office. At that point, respondent had not failed to do anything. Lawrence filed a motion for entry of default based on the possibility that respondent would default, where the Rules of Procedure require a defaulted respondent when counsel files the motion. (State Bar Rules Proc., rule 200(a)(2).) A motion that survives time limits by guessing the future cannot survive review for due process.
2. Deputy Trial Counsel Lawrence's severe misconduct has denied respondent a hearing before the Review Department.
A. Ms. Lawrence participated in the falsification of respondent’s documents received by the clerk to engineer their rejection for filing.
Even if the clerk’s rejection of respondent’s petition had really been caused by respondent’s inadvertence, such inadvertence would not justify taking a default. But respondent’s inadvertence did not cause the rejection. As shocking as it is, the rejection can be explained only by a fraud in which Deputy Trial Counsel Lawrence participated.
The clerk’s office rejected the filing for two reasons:
The proof of service lacked a signature; and
Four copies and an original were not included.
The astonishing fact is that neither of these reasons is true, and the details’ astonishingly distressing implication is that Deputy Trial Counsel Lawrence directed the clerk to falsify the record. Both my secretary and I checked the signatures and the copies. But respondent knows additional facts. Respondent sent out only a single unexecuted proof of service and mailed it to Ms. Lawrence. Respondent sent the opposing party an unsigned proof of service, as is his routine practice, according with law and logic better than the common practice of signing them all.
any lawyers, surprisingly, 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 must have immediately approached the clerk ex parte to obtain a filing rejection, Deputy Trial Counsel’s copy of the document plus proof of service in hand. The clerk then sent me the copy of the proof of service I sent Ms. Lawrence, representing it as the one attached to the court’s main document. She then promptly destroyed the documents. I know these facts are true, because the only unexecuted proof of service accompanying any of the items mailed was the one addressed to Ms. Lawrence.
B. The facts of this fraud are readily provable.
Fortunately, the document respondent sent Ms. Lawrence--hence the one the clerk returned him-contained the date, handwritten in ink. If these accusations are false, Ms. Lawrence can refute them 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, on which the date entered will be tactilely distinguishable. Deputy Trial Counsel Lawrence has taken it upon herself to see to it that my case never reaches the Review Department.
3. Clerical hyper-technicalism violates decisional law.
Much of the litigation at the State Bar Court is informal, because designed to expedite the fast-paced processing of cases, serving to both protect the public and the attorney charged. Besides making fraud by a clerk particularly easy, the hyper-legalism of the State Bar’s proof of service rules stands in marked contrast and serves more to entrap respondents in errors than to expedite proceedings. The practice of disposing of all documents marred by minor error and requiring complete re-service collides with decisional law on the duties of the court clerk’s office. That law holds that the court should briefly retain documents having minor deficiencies. (See Rojas v. Cutsforth (2nd Dist. 1998) 67 Cal.App.4th 774 [“To deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.”].) No excuse can justify disposing of the documents when the respondent might reuse them. Respondents who have suffered major law office problems will often remain in strained financial circumstances and simply throwing away $20 of expense is not reasonable, where the Legislature intended to give respondents an opportunity to be heard.
My secretary subsequently asked the clerk if she checked the other copies for the proof of service. She said she had not, because she needed only to check the original. Since no document was marked original, she chose one arbitrarily and on that basis decided that the “original” did not contain a signed proof of service. The method is unreasonable, because a single signed proof of service, wherever found, proves service.
Distinguishing between State Bar routine practices and this clerk’s idiosyncrasies is unnecessary. Regardless of how she was inspired, what she and Ms. Lawrence did was unconscionable and indeed criminal. They have obstructed justice in the courts by trumping up a bogus basis to deny me a hearing by the Review Department.
4. Respondent seeks not delay but the earliest hearing of his motion to dismiss the NDC.
A. The State Bar caused the most serious delay.
Ms. Lawrence charges respondent with using delay tactics not simply to marginalize his arguments but to distract from her primary responsibility for delay. Ms. Lawrence’s large-scale time wasting occurred mainly through her filing an earlier motion to enter default. Respondent filed a motion to dismiss on September 4, and the Hearing Department noticed rejecting my immediately subsequent motion to reconsider on November 11. That is nine weeks for five weeks worth of judicial transactions. Ms. Lawrence wasted precious time because she filed an improper motion to enter default, refusing to recognize the egregiousness of her conduct and that no court could enter default on such facts as presented:
Respondent files the document;
Five days pass; and
Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.
B. Answering the loaded statements in the NDC would be prejudicial to respondent.
Respondent argued rigorously that the seriously flawed NDC does not state disciplinable charges. More attention now to the prejudicial consequences of proceeding on the NDC could help quell Ms. Lawrence’s baseless accusations concerning delaying tactics. The current NDC consists of a series of loaded statements, which assume the relevant predicates. To answer the NDC one would have to first unearth the suppressed predicates and then answer them, at the same time continually clarifying that one is not sidestepping the actual allegation. As Ms. Lawrence pointed out, the State Bar believes that respondent committed misappropriation, simply because the wrongdoers performed their deeds from his office, regardless of his knowledge, conduct, or precautionary measures. Were the State Bar confident of its theory, the Office of the Chief Trial Counsel could try the case immediately as a matter of law, because respondent admitted all the necessary facts under penalty of perjury in his original motion to dismiss the NDC: staff performed acts of theft from respondent’s office while there employed. In addition, respondent admitted potentially damaging facts gratuitously, conduct which should lead the court to question Ms. Lawrence’s accusations about dilatory conduct. How many dilatory respondents knowingly make gratuitous admissions under oath that give the State Bar its entire case, as conveyed by the State Bar’s handling attorney?
The NDC tries to cover all the bases. It vaguely alleges that respondent committed misappropriation “through” staff members to insinuate the State Bar’s theory of strict ethical liability, as described above. But the NDC does not read that way. It implies without actually stating that respondent ordered or ratified the larcenous conduct. Converted into questions, these allegations are such as could never be asked of a witness. Useful or undistorted information is not obtained by asking questions that assume the respondent’s guilt. The respondent simply cannot answer these questions. Nothing respondent could say could create a clear record.
C. Respondent will make any compromise to receive a hearing before the Review Department.
Every principle of fair play dictates that respondent should have his day before the Review Department. The rush to judgment without this element of due process can be justified on two grounds only: protection of the public and protection of respondent. The latter, respondent waives; if the court believes the public needs protection in the interim, respondent is prepared to make very great concessions in order to have his petition heard. The maximum protection the public could receive is respondent’s immediate involuntary enrollment as inactive. Respondent is prepared to accept this measure of immediate disbarment, if the court believes it necessary to protect the public, keeping in mind that respondent has not represented any client in the past two years and does not intend to do so. If necessary for public protection, respondent would stipulate to mandatory inactive enrollment in return for the State Bar’s relinquishing its resistance to hearing respondent’s petition for review and staying proceedings in the Hearing Department until the Review Department rules.
Respondent prays that the court:
- Approve a deadline for re-submission of the matter to the Review Department;
. Stay the case pending that review;
. Take measures necessary to prevent meddling with the court records by clerks and trial counsel; and
. Take interim measures it deems necessary to protect the public.
Dated: _________________________
By: Legal Research & Writing Service
Stephen R. DiamondDeclaration of Stephen R. Diamond Supporting Opposition to Motion to Enter Default
I, Stephen R. Diamond, declare based on personal knowledge that:
. I am a Member of the California State Bar, admitted to practice law before all the courts of the State of California.
2. I thoroughly inspected the documents immediately before they were mailed.
. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service mailed that contained an unexecuted proof of service.
8. I have not represented any clients in the past full year, except my wife in a common matter.
9. I do not intend to represent clients in the future.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
________________________________
Stephen R. Diamond, declarant
Declaration of Catherine R. Hoholik Supporting Opposition to Motion for Entry of Default
I, Catherine R. Hoholik, declare based on personal knowledge that:
1. I am secretary at Stephen R. Diamond’s Legal Research and Writing Service. I served and tried to file by mail the petition for review in this case.
2. I thoroughly inspected the documents before mailing them.
3. The petition for review as sent to the Review Department for filing contained an original and four copies.
4. All five documents mailed to the Review Department had hand-signed original executed proofs of service attached.
5. The document served to Judge Honn had an executed original hand-signed proof of service attached.
6. The document served to Melanie J. Lawrence had an unexecuted proof of service attached.
7. The proof of service mailed to Melanie J. Lawrence was the only proof of service I mailed that contained an unexecuted proof of service.
I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 8, 2007 in Joshua Tree, San Bernardino County, California.
______________________________

Catherine R. Hoholik, declarant

END Document.

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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. 13th Installment. The State Bar Gets Nervous

Pulling another trick out of the California State Bar's dirty bag, the Office of Chief Trial Counsel files another motion to enter default, notwithstanding my pending petition for review. The court (or “Hearing Department”) deserves blame for this frivolous motion, because the court emboldens the prosecutrix by mixing messages in orders. Judge Honn twice granted the substance of my motion or denied a motion I opposed. In each, the court pretended that the Bar prevailed.

The first installment treated one instance, a hearing where the court denied the Bar's motion to enter default and permitted me to file a motion for reconsideration. While upbraiding me in harsh generalities, the court granted my opposition’s substance. Yet, listening to all the criticisms directed at respondent, the prosecutrix did not carry away a cautionary message from her failed first attempt to take a stealth default.

In the second instance, the Hearing Department granted delay of my deposition until it ruled on reconsideration. Yet, in ruling in my favor, the Hearing Department styled its order a denial of my motion to continue the deposition notice. Again, Judge Honn ruled in my favor on the matter before him, while clothing the order in terms celebrating Deputy Trial Counsel's victory.

The court does not obfuscate orders merely to feed the prosecutrix’s ego. It intends respondent forgo taking encouragement. This is important because, for want of legal judgment, the Bar cannot count on weathering a litigation storm. Consider the frankly pathetic whining of Deputy Trial Counsel Melanie J. Lawrence, in trying to support her frivolous new motion for entry of default:

Trial in this matter is scheduled to begin December 17, 2007.If the regular time for response to this Motion is allowed, the deadline for a written response will be the same date the beginning of trial is scheduled. As it is, the State Bar has been severely prejudiced in trial preparation by the fact that no response to the NDC has been filed.

Ms. Lawrence's problem is that her astoundingly bad legal judgment wasted a lot of the Bar's precious time. Respondent filed a motion to dismiss on September 4, and the Hearing department noticed rejecting my immediately subsequent motion to reconsider on November 11. That's nine weeks for two motions, judicial transactions that should require only five. The State Bar lost its month because Ms. Lawrence refused to waive her right to proof of service. Proof under the circumstances was a purely technical requirement and one that the State Bar had already waived by accepting my document for filing. No court, not even the State Bar Court, could enter default on these facts:

1. Respondent files the document;
2. Five days pass; and
3. Deputy Trial Counsel only then informs respondent that he omitted a proof of service and she intends to take a default.

The prosecutrix behaved outrageously, and I admit it surprised me. She filed the motion and then spent weeks of valuable time waiting for the result. Why? She just did not know her motion stood not a chance. She believed she would prevail.

The Bar intimidates lawyers to suppress serious litigation, at cost to its attorneys' basic legal experience. What passes for litigation is quibbling about the time span for a suspension. Incidental errors also testify to the Bar's impoverished capabilities. While the prosecutrix wants the Bar to shorten time for responding to her motion, her motion can take at most a couple of days off the response deadline. Had the State Bar served its motion for default by overnight mail, it would have gained four days without court intervention.

Attorneys conducting a disciplinary defense against any of the state bar associations need to develop a case that challenges the State Bar on fundamentals, whether procedural or on the merits. The State Bar proves unequipped to deal with such challenge.

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