kanBARoo court. 32nd Installment. Disbarment of a President

Attorney responses to the 29th Installment, posted to a law newsgroup last month, reveal distortion of civic discourse wherever a State Bar imposes its bureaucratized moralism. First, the merits.

Installment 29’s argument showed that disbarring Bill Clinton conflicted with the Supremacy Clause because, to prove its case, the State Bar adverted to acts in Clinton’s performance of Presidential duties. Posters bypassed this argument, as they argued that federal law never preempts the State Bar, authorized to regulate the practice of law. ["It disciplined an Arkansas lawyer for his conduct. That's what the Arkansas Bar does."—Seth.] Posters contended applying the preemption defense, like the double jeopardy defense, depends on similarity of governing clauses, not identity of regulated transactions. If state law does not control Presidential conduct qua Presidential conduct, posters believed regulating Bill Clinton during his performance of Presidential duties does not affect the office of the Presidency.

The case law on Presidential immunity refutes posters’ contentions that the Supremacy Clause only prohibits states from transparent regulation of Presidential conduct. Preemption has specific and general forms, the specific form of preemption—constituting a qualified immunity—requiring that the preempted rule contradict a federal statute; the general form—constituting an absolute immunity—that it merely regulate a field the federal government indicated its intent to occupy. Judges, prosecutors, and especially Presidents, enjoy absolute immunity for acts taken in the course of their duties, a President's broad absolute immunity from civil suit undisputed. (Nixon v. Fitzgerald (1982) 457 U.S. 731, 756 [“In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility.”].) Since a disbarment proceeding is civil on the one hand, but not for damages on the other, Presidential immunity is first impression. But Presidents with arguments less tenable have challenged jurisdiction wherever possible, when facing constraint by Congress or courts. (See for example, United States v. Nixon (1974) 418 U.S. 683.) If preemption/immunity failed, a still stronger case would remain for invoking federal removal jurisdiction. (28 U.S.C. § 1442, subd. (a)(3).)

The posters’ arguments help show why Clinton did not argue preemption or immunity. Many attorneys, if not the public, assume the Bar benign. Attorney Mike Jacobs explained:

"That's a pretty extreme interpretation of what disbarment is about. Being admitted to the Bar, meaning one is permitted to act as attorney representative for someone else's legal interests, is a privilege, not a right. It carries a heavy responsibility to both the client and the system of justice to act at all times in accord with ethical standards, because if clients can't trust their lawyers, the whole system can fall apart. It's not like 'the man' (the establishment) is 'out to get' the attorney who is disbarred, in most cases, even if abuses may occur from time to time because even the judges of the highest State court are human."

Even a President proves reluctant to challenge the jurisdiction of the State Bar. The electorate presumed his guilt, as attorneys still do, reflexive bureaucratic procedure plus moralistic veneer impressing more than trial. The insertion of the State Bar into U.S. Constitutional controversy deflects clarification by litigation or commentary.

State Bar involvement in punishing Presidential conduct conflicts with the Supremacy Clause. Minimally, all federal officers have general immunity for acts related to their duties, and the President's immunity is broadest. The rationale for the President's absolute immunity to civil litigation is that Presidential civil liability illegitimately places conflicting demands on Presidential conduct. (See Nixon v. Fitzgerald, supra, 457 U.S. at p. 751.) In analyzing Bill Clinton's State Bar case, lawyers disparaged functionally necessary federal constraints on state action. The opinion of a President's home State Bar supplies one of the worst bases of influence on a Presidential decision.

kanBARoo Court. 31st Installment. Bills of Attainder Revisited

The Benninghoff Miscarriage of Justice criticized an oppressive Court of Appeal decision, where the Fourth District construed Government Code section 6126, subdivision (b), to exclusively prohibit former State Bar Members like Benninghoff from practicing administrative law. The Sixth Installment suggested that Benninghoff might have successfully attacked the judgment as enforcing an invalid bill of attainder. Even though the criteria for bills of attainder have proven unsuitable for objective application, the breadth of the imposed occupational debarment, peculiarly arbitrary, would make an exceptional bill of attainder case.

The bill of attainder clause has become impossible to apply because of its unsystematic attenuation. To see how weak has become the U. S. Constitution’s bill of attainder clause (Article I, sections 9 and 10), consider that the leading case is Nixon v. Administrator of General Services (1977) 433 U.S. 425, the case deciding that a law taking possession of ex-President Nixon’s papers was not a bill of attainder. The subject legislation referred to Nixon—and only to Nixon—by name, in the aftermath of his being forced out of office in disgrace, bearing a despised pardon for his high crimes.

A bill of attainder legislatively punishes specified or clearly classified persons, thereby impugning principles of both due process and separation of powers. “Attainder” derives from “taint,” and political victors have often passed laws of attainder to further humiliate a defeated political rival; usually the laws convey the sense of moral obloquy. An extraordinary measure directed against a defeated chief of state, personally named, might seem a textbook bill of attainder, notwithstanding Congress’s wisdom, fulsomely praised.

So it would have seemed, at the post-Civil War renaissance of the bill-of-attainder clause. The contemporary law governing the constitutional ban on bills of attainder, universally recognized as an odious tool of oppression, began with two post-Civil War cases involving the occupational debarment of professionals—one an attorney—who refused to swear oaths of non-participation in the vanquished Confederate government. The U.S. Supreme Court held that debarment from the occupations of teaching and the law punishments per se. (See Cummings v. Missouri (1867) 71 U.S. 277 and Ex parte Garland (1867) 71 U.S. 333.)

The next political struggles sufficiently vehement to turn High Court attention toward the instinct to taint occurred in the post-war period, under McCarthyism and its aftermath, when the Government tried to fire Communists from their jobs, deport them, and bar them from labor-union office. These oscillating five-to-four-case outcomes, exquisitely sensitive to the court’s political composition, show indifference to stare decisis. Opinions authored by Justices Black and Douglas expanding the clause’s protection were opposed in dissents by Justice Frankfurter. Then a period of Frankfurter’s dominance, where the court without exception ruled against applying the bill of attainder clause, followed by the return to dominance of Justice Black and Douglas’s faction, joined by Chief Justice Warren, the court throughout these ideological swings never expressly over-ruling its earlier holdings.

Justice Frankfurter's untiring application of his regulatory versus punitive dichotomy harmed legal doctrine, the repair still in process. Frankfurter’s scheme required asking, regarding a measure inflicting an adverse outcome on specified citizens, whether its focus was outward, on conditions in civil society, or inward, on the mind or behavior of the target citizens. Frankfurter’s analysis could have deemed regulatory the Civil War cases’ occupational debarments, passing muster under the bill of attainder clause, because Legislators believed that these professional applicants were unreliable teachers of youth or officers of justice, as the Frankfurter-dominated Supreme Court held for laws barring Communists from municipal employment.

The punitive/regulatory distinction has proven impossible to draw objectively, a deficiency usually received as good reason to drop or reform the analysis, but it has burrowed deeply into the law, and many measures that the courts would once regard as bills of attainder or ex post facto laws have become accepted practice, including the legislation on Nixon’s papers, mandatory registration for sex offenders, prohibition of gun ownership by ex-felons, and civil property forfeitures for drug-law enforcement.

The Supreme Court developed the modern test for punitiveness in the bill of attainder clause context in Nixon v. Administrator General Services, supra, where the court required analysis of three factors: 1) is the punishment historically the kind imposed by bills of attainder; 2) does any non-punitive purpose actually achieved by the measure justify it; and 3) does the legislative history clearly show an intent to punish. Factor 3 requires so high a standard of proof as generally impossible to meet. Factor 2 restates the punitive/regulatory dichotomy, without disturbing its subjectivity The post-Civil War cases, however, leave their residue in the first factor. Those cases stated unequivocally that certain measures are inherently punitive: death, imprisonment, property forfeiture, and permanent occupational debarment.

Although variously expressing their holdings, most federal appellate circuits treat the first factor, historical attainder punishments, as creating a presumption of punitiveness, rebuttable only by clear and convincing evidence. (See for example, Bellsouth Corp. v. FCC (D.C. Cir. 1998) 144 F.3d 58.) This is why the California disbarment law itself would survive bill of attainder challenge, although the procedure imposes penalties without a hearing before the judicial courts. Clear and convincing evidence might be marshaled justifying the non-judicial disbarment proceeding as designed to regulate the practice of law. But Benninghoff was subjected to an occupational debarment that could not have been deemed necessary for the regulation of law because practice in the administrative law courts is unregulated.

kanBARoo Court. 30C Installment. Why the Supreme Court wants to avoid discipline cases and what to do about it

A level of balance between attorney property rights and public protection constitutionally determines the due process accorded State Bar respondents, but the State Bar suffers from an inefficient mix of measures fostering reliability of judgment and favoring speedy case resolution. One example is Business and Professions Code section 6007, which insists on immediate implementation of the State Bar's recommended judgment. Although a mere recommendation, the Hearing Department's disbarment sentence automatically enrolls respondent inactive, a draconian measure, which would make resistance impossible for most attorneys who would mount an appellate challenge. Section 6007 thus deters challenges to the State Bar, accelerating its bureaucratic ossification. State Bar establishment doctrine justifies the provision both by the public's right to protection and the respondent’s to speedy resolution, but a Fine case timeline shows the alleged judicial incidents began in 1999, and the Bar brought charges in February 2006. The public has an interest in preventing practice by psychopaths, but if Fine were an attorney bereft of scruples, he has practiced while harboring this deficit some 9 years after the event, and Judge Honn’s opinion does not disclose how long the Bar has imposed investigatory annoyances on Fine. How much would it matter for public protection if Fine were allowed to practice until his appeal is resolved? The expediency the State Bar Court rules promote provides little added public protection, while undermining salutary appellate strategies.

A fact little appreciated because of that court’s draconian powers, the State Bar Court is not a real court of law. The State Bar Court's jurisdiction derives entirely from the Supreme Court, the State Bar being both a semi-private corporation and an administrative arm of the Supreme Court, a compound status whose incoherence we ignore, as we ignore exceptions to Supreme Court jurisdiction for some lesser disciplinary penalties. The convoluted characterizations of the State Bar’s court’s legal status show that the Bar assumes powers constitutionally uncontemplated, as in In re Rose (2000) 22 Cal.4th 430, which relates to another bad trade-off in State Bar procedure, a subject of Richard Fine's current writ petition to the California Supreme Court, Richard Isaac Fine v. State Bar, Case No. S161247 (http://tinyurl.com/2xcgl4) The case added yet another epicycle to truncate respondents’ right to invoke a real court's jurisdiction, critical because permitting attack from outside the ingrown, collusive State Bar system. In re Rose unfortunately holds that when an attorney petitions the Supreme Court for review of a final decision, the court need not hear oral argument or provide a written opinion. The Supreme Court concluded anomalously it exercised final jurisdiction over all acts of disbarment yet denied that final judgments were subject to the conditions and protections the California Constitution afforded causes in constitutional courts. The court's arguments are so contrived that were they raised by a petitioner before that court, petitioner would risk sanction. The Supreme Court maintained:

Nothing in the debates regarding the written-decision requirement in article VI, section 2, of the Constitution of 1879 suggests that the term "cause" was intended to extend to attorney admission and disciplinary proceedings. [Citation.] The generally understood legal meaning of that term also supports the conclusion that such matters are not causes. The word "cause" is a synonym for “‘a proceeding in court, a suit, or action.' "[Citations.]

A petition for review of a State Bar Court recommendation regarding admission or discipline does not fall within any of these definitions. Like the proceeding in the State Bar Court, it is sui generis—the procedures governing ordinary civil and criminal proceedings do not necessarily apply. [Citations.] (In re Rose, supra, 22 Cal.4th at pp. 452-453.)

Absence of evidence that the Legislature included Bar proceedings is not evidence of the absence of its intent. Since Legislature showed its intent precisely, by using the term “cause,” its legal meaning is wholly dispositive. Even if the State Bar proceeding itself is not a "proceeding in court," the law requires that the Supreme Court’s disbarment procedure is such a proceeding.

As Justice Kennard stated in dissent:

The majority's decision here produces a startling anomaly: Attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing. When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court. I would avoid this anomaly by recognizing that the state Constitution's guarantees of oral argument and a written opinion apply in attorney suspension and disbarment proceedings. (In re Rose, supra, 22 Cal.4th at p. 461 [dissent, Kennard, J.].)

The State Bar Court was not a usurper but passive recipient from its Supreme Court benefactor. Superficially, practical necessity—the growing weight of attorney numbers—compelled bureaucratization. Justice Kennard's excellent dissent in this revealing case refutes the rationalization by counter-example: the Supreme Court could have divided the cases within the Court of Appeal. Of the Supreme Court's motives for deviating from legislative intent, I speculate, and In re Rose attests to the burden of attorney discipline:

By 1990, before we adopted a policy of discretionary review pursuant to rule 954, we were issuing more than 40 opinions annually in State Bar disciplinary proceedings, and the number was increasing. (In re Rose, supra, 22 Cal.4th at p. 457.)

The Supreme Court doesn't like State Bar cases, as is apprehended from its growing annoyance, before it gave up in the Lipson line of cases. (See Lipson v. State Bar (1991) 53 Cal.3d 1010, 1016; Sugarman v. State Bar (1990) 51 Cal.3d 609; Baker v. State Bar (1989) 49 Cal.3d 804 ; Maltaman v. State Bar (1987) 43 Cal.3d 924, 931; and (1987) 43 Cal.3d 962, 968.). Nobody enjoys dealing with State Bar counsel, arrogant and incompetent, their work product unintelligible. Rational beings, Supreme Court justices prefer to place disciplinary cases in an isolation container, somehow to find a way to ensure due process yet avoid, as in Rose, signing tendentious opinions.

Rose's gravamen is not identical to Fine's; it serves to indicate why, in the course of the law’s development, Fine arrived at the present procedural posture. The governing procedural law was not always as today, and Fine v. State Bar independently pinpoints the inconsistency between judicial procedures and legislative intent. The issue Fine v. State Bar brings to the Supreme Court via petition for writ of mandate is: must the Supreme Court provide a written order after denying an interlocutory petition for review? Rose does not foreclose Fine's issue, because Fine contends statutory law expressly requires written orders following summary denial of a petition for review, a requirement the law does not expressly apply to disbarment, distinguishing Rose’s unfortunate holding. The statute governing these interlocutory summary denials states:

In any case in which a petition to review or to reverse or modify is filed by either party within the time allowed therefor, the Supreme Court shall make such order as it may deem proper in the circumstances. Nothing in this subdivision abrogates the Supreme Court's authority, on its own motion, to review de novo the decision or order of the State Bar Court. (Bus. & Prof. Code, section 6084, subd. (a).)

The dispositive issue of statutory construction concerns the scope of the permissive term "may”: must the court issue some order? Is the Legislature saying that the Supreme Court must issue any order only if it deems orders proper or that it must issue some order, selecting the one it deems proper? The rule’s language supports Fine’s construal, under the canon against surplusage, the rule of statutory construction that requires giving effect to every part of the statute. In the second quoted sentence above, the statute reiterates it does not abrogate the Supreme Court's universal authority to review any time on its own motion. A permissive rule as to orders, already in place, is surplusage in Business and Professions code section 6084.

Rose also contains implications for how to contest the State Bar in the real courts, in the comments of Justice Brown, separately dissenting:

Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. … (In re Rose, supra, 22 Cal.4th at pp. 466-467 [dissent, Brown, J.].)

Justice Brown states with judicial precision that a respondent's prospects for obtaining actual review depend on neither where the issues actually fall relative to rule 954’s ambit nor how the Supreme Court arbitrarily characterizes them. Respondents must frame the issues so they clearly fall within the rule and must state their case so clearly that a busy and avoidant court grasps the issues and ratifies the arguments.

In combination, written clarity, relevance, and concision are uncommon among trial attorneys, whose expertise is oral and who instinctively seek completeness and correctness. Put it out there, encompassing every bit of evidence, every significant logical connection, and a properly functioning court will absorb it. In truth, language must be crafted to persuade, undaunting in mass, ultra-clear in exposition.

The Supreme Court should grant Fine's mandamus petition and allow Fine to state his arguments, orally as well as in writing.

_______________________

Because of its length, I will count this installment as two. Next installment due in one week.

kanBARoo Court. 30B Installment. The State Bar Violates Richard Fine's First Amendment Rights

Litigants defending against legal oppression must contest questions of law, yet litigating the law, as opposed to the facts, requires different skills than trial lawyers possess. Lawyers understand that appellate attorneys form a distinct breed, but the fact-laden content of motions initiating trial-court summary procedures lends them the deceptive appearance of trial-attorney work. Of trial lawyers like Fine innocent of wrongdoing, the few who jurisdictionally attack the notice of disciplinary charges (NDC) sometimes overlook appellate opportunities. While Fine may not be able to undo the omission, Fine's appellate opportunity clarifies the injustice of State Bar intervention into Fine's judicial disputes, implicating Fine's U.S. Constitutional First Amendment rights.

California's Code of Civil Procedure contains an antiSLAPP provision, a special summary procedure. (See Code Civ. Proc., § 425.16.) The California Legislature declares its purpose in the body of the statute:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

The Anti-SLAPP statute provides a special summary procedure and an automatic right of appeal with regard to actions that include, among other legal targets:

[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law… (Code Civ. Proc., § 425.16, subd. (e)(1).)

State Bar v. Fine is the State Bar's legal action against Fine's judicial written and oral statements, subjecting the action to an anti-SLAPP motion unless the statutory exceptions preclude application. The exceptions are not preclusive, including:

This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor

The office of the Chief Trial Counsel goes unmentioned, as the State Bar is a public corporation, neither connected with any other prosecutor's office nor representing the People.

Filing an anti-SLAPP motion brought to enforce the higher standards of initial proof applied to liberty-chilling legal actions, such as the one by the State Bar against Fine, could win: respondent's legal fees, dismissal with prejudice, and an immediate appeal to the Court of Appeal — bypassing the dubious State Bar Court Review Department — if the Hearing Department denies his anti-SLAPP motion. The Legislature passed the anti-SLAPP statute to protect First Amendment civil liberties by filtering out oppressive lawsuits seeking to deny exercise of basic democratic rights. But consider, if the Legislature worries about the chilling effect of civil suits, such as defamation or malicious prosecution, did it intend to allow draconian State Bar actions against political speech and petitions addressed to the courts? Because Fine addressed the court alone, public-protection considerations don't justify the Bar’s intervention. The Bar doesn't accuse Fine of acts of fraud or misappropriation perpetrated on the public but of vexatious speech before judicial officers holding the contempt power. That power must deter stubbornly frivolous motions — to present the worst-case characterization — since otherwise a judge confronting a contumacious non-attorney in pro per would forfeit control of the court. No emergency arose to justify State Bar intervention against Fine's acts of petition before courts of law.

While Fine arguably waived his right to file an anti-SLAPP motion under a statutory time bar, a more perspicacious account is that the State Bar through its rules denied Fine his right to file an anti-SLAPP motion because the State Bar Court Rules of Procedure makes the motion to dismiss the NDC available as Bar-Court respondents’ exclusive summary procedure. Fine might successfully contend that after relying on its coercive procedures the State Bar is estopped from excuse by Fine's omission below.

Most importantly for Fine — unheard of by the State Bar or the State Bar defense establishment — a defendant/respondent may appeal a trial court's denial of an anti-SLAPP motion, as opposed to petitioning for review. Fine might hope to assert the still substantial remnant of his right to a hearing on appeal before the California Second District.

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. 30A Installment. Collateral Estoppel as a Tool of Judicial Bias in the Richard Fine Matter

Although Richard I. Fine’s supposedly corrupt motive for filing motions deemed frivolous formed the crux of the State Bar's case against him, the State Bar Court also made a strained attempt to allege dishonesty, lending a comic aspect to its account. A dispute arose over an apparent Freudian slip by a Superior Court judge in his statement of refusal to disqualify one Commissioner Mitchell, when that Superior Court judge, hearing Fine's motion to disqualify, contradicted himself. The judge wrote that Fine's objections were unfounded and also wrote that Commissioner Mitchell had been "not impartial.” Later, the Superior Court judge announced he had not intended the negation. Judge Honn concluded that Fine had lied to the Court of Appeal about the contents of the Superior Court judge's opinion, when Fine insisted the opinion was actually self-contradictory.

Judge Honn claimed the Superior Court judge had clearly made a “typographical error.” The characterization is curiously inaccurate, and it reveals how Judge Honn wears his bias on his sleeve. This is a most strange "typographical error," a term that "includes errors due to mechanical failure or slips of the hand or finger, but excludes errors of ignorance." (Wikipedia.) If the Superior Court judge successfully maintained his mistake was clerical in nature, he is entitled to correct it sua sponte, but the source of his mistake, if it was a mistake, looks to be his confusing the meaning of "partial" and "impartial," not a clerk typing the wrong alpha-numeric. Small gestures, such as mislabeling one contender's errors, are often key to detecting judicial bias. Although respondent Fine was entitled to a clear and convincing evidence standard of proof, Judge Honn tilted the playing field in the opposite direction, when he used a euphemism for the supposed error.

The Bar Court determined that Fine misrepresented the Superior Court judge’s opinion, treating Fine's disagreement with a judge as though it were dishonesty. No doubt the disagreement was serious, as Fine challenged the judge on characterizing judicial intent. But Fine was entitled to challenge the judge’s characterization, and entitled to treat the document as meaning what it literally said. The State Bar Court's finding by clear and convincing that the judge had made a typographical error expresses genuine absurdity, besides absurd pettiness.

But wait! Did the court even have to evaluate the evidence? In evaluating the typographical error matter, the Bar Court claimed to have conducted an independent evaluation, but in supporting many of its conclusions, the court applied the doctrine of collateral estoppel to Fine's contempt conviction. A contempt conviction is essentially a criminal matter, and while the applicable standard of proof is more than adequate, other problems should have deterred using the contempt conviction to effect issue preclusion. California courts do apply collateral estoppel liberally, having abrogated the traditional requirement of mutuality, but liberality in the formal requirements must be balanced by greater exercise of judgment. When applying collateral estoppel, California law requires that the courts address whether the specific application of the doctrine serves the interest of justice. (People v. Taylor (1974) 12 Cal.3d 686, 695.) Collateral estoppel based on criminal judgments is controversial in jurisprudence and requires particular scrutiny.

Two considerations should have led the court to decline to collaterally estop Fine: incomplete finality of judgment and differential motive to defend. Collateral estoppel requires finality in the collaterally applied judgment, but criminal judgments necessarily lack a civil judgment’s degree of finality, because they are subject to collateral attack for reasons intrinsic to the case. Reasonably, if you suffer a criminal conviction, it may be reversed, if say, witnesses condemned you by committing perjury, whereas, in a civil case, you must attack the perjury in the case itself. Fine's allegations of de facto bribery of Superior Court Judges amounts to an allegation of intrinsic and extrinsic fraud, which warrants collateral attack, since Fine's conviction is only as strong as his underlying civil case against the County is weak. Since Fine was still contesting the civil action, the contempt conviction lacked the requisite finality. The other implicated criterion, equal incentive to defend, requires that Fine have the same motivation to litigate the contempt conviction as the disbarment. Unlike disbarment, contempt is not inherently ignominious. Disbarment, moreover, is a more serious penalty than spending three days in the local jail. Fine lacked the same motivation to defend the contempt action as the disbarment, and the contempt conviction, consequently, was not probative for his disbarment case.

The court offered no analysis of whether applying collateral estoppel to the contempt conviction served the interest of justice. The court would then have to consider Fine’s contentions. The State Bar Court’s disregard for respondent argument is damning in general but expressly unlawful when the court applies collateral estoppel.

kanBARoo Court. 30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty

Incompetent administration of law is oppressive in itself, as bureaucratic reflex replaces legal reasoning, but usually the oppression turns corrupt. In my case, the prosecutrix resorted to fraud on the court by pilfering documents submitted for filing. Thus, a second way incompetence breeds oppression occurs because of the inability of the incompetent to defend their acts honestly. A third way is that incompetence limits the reasons for eschewing oppressive or corrupt practices. It matters little whether one acts for good or bad reasons, if the results are wrong in either instance. A fourth way, their sole means to career advancement, the incompetent curry favor.

I started this blog, subtitled "How Legal Incompetence Engenders Oppression," because my case illustrated in pure form the most generic variant of legal oppression, bureaucratic reflex. Because of the case's direction, these Installments have digressed into the second route from incompetence to oppression, the prosecutrix's inability to win cases honestly, and, somewhat the third, in the court's indifference to the prosecutrix's misconduct. I have traveled the fourth, financially self-aggrandizing corruption, only briefly here. While there are pure cases of bureaucratic reflex—mine was at its inception—there are no pure cases of juridical corruption by currying favor for material reward because such corruption requires generalized incompetence, an environment unable to rebut error.

An all-sided view of incompetence and oppression must take account of scenarios where greed joins ineptitude in the engenderment. The Richard Fine disbarment is such a case. (See http://tinyurl.com/38ek9h) Attorney Richard I. Fine has practiced for some 40 years, gaining a reputation for successfully litigating citizen actions against government entities. His career trajectory eventually led to collision with the judicial system itself when he demanded the disqualification of judges in citizen litigation against the County of Los Angeles, based on the judges’ accepting payment from the County. Fine contends that the gratuitous payment of a $40,000 annual cash benefit by the County violated the California Constitution, which states that judges shall be paid by the State exclusively, and he contends the payments amount to a bribe. Fine repeatedly moved to disqualify judicial officers in actions against the County and eventually sued the judges personally, a procedure permitted for personal wrongdoing. At least one of the judicial officers filed a complaint with the State Bar, and the complaint resulted in the Hearing Department recommending disbarment. Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims happened, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done.

The State Bar Court doesn't ordinarily disbar without a showing of greed or dishonesty. Judge Honn needed allegations of moral turpitude, and such allegations the good judge did propound. Judge Honn accused Fine of making frivolous motions out of corrupt motive, the corrupt motive implying moral turpitude. Even if the court could justify discipline for good-faith motions the court considered frivolous, it remains hard to see what Fine's corrupt motive might be. Allegations of greed — the substance of true moral turpitude — are absent from the charges and Judge Honn's opinion. The moral turpitude may be invisible, but Judge Honn is not one deterred by implausibility. According to Judge Honn's opinion, the corrupt motive served by Fine's allegedly frivolous filings was to coerce the judges, and failing that, to wreak revenge!

Judge Honn does not clarify how he surmised Fine's motives. The State Bar Court recommended Fine's disbarment because he is a "legal bully," obviously the tenor of the offended judges' complaints. Some judges are so accustomed to lawyers cowering in their courtrooms that they might contrast any zeal as bullying, but, as to actual bullying, a barrage of frivolous motions is no way to bully a judge. And where is the revenge, when the judge wins, the petitioner is sanctioned, held in contempt, and serves, as did Fine, three days in jail? Corrupt motive in the Fine case is a senseless conclusion without evidence in the face of a far more plausible explanation of Fine's incessant motions. When the judges showed new biases, Fine had to file motions demanding disqualification or risk waiving the issue. Fine perceives a mass-conspiratorial fraud on the court, not an everyday legal situation. Whatever the merits of his position, this is not a State Bar matter.

In the next Installment, you can learn how the Fine Hearing Department failed even to establish the alleged facts on which it dwelled and relied.

kanBARoo Court. 29A Installment. Why didn't Bill Clinton argue federal preemption?

Clinton filed no Arkansas brief. To argue preemption, Clinton would have to appeal the decision. Here a difference between many other systems and California's comes into focus. California has created the most "advanced" State Bar establishment in the world, having set up a separate court system with its own Bar law. Other jurisdictions, such as Arkansas, have different rules for Bar cases, much like California's, but no separate State Bar system, which means primarily that they lack the equivalent of California's Review Department and a separate legal reporter for State Bar cases.

In Arkansa after a decision is rendered by a committee appointed by the state's Supreme Court, the latter court usually approves the disbarment. Thus there is no procedural room to appeal a disbarment decision, whereas in California an appeal can be taken to the Review Department and subsequently to the California Supreme Court. To raise the preemption defense, Clinton would have had to appeal to nothing less than the U. S. Supreme Court. A challenge to State Bar procedure can be initiated in federal district court, but the U.S. Supreme Court has exclusive jurisdiction over a challenge to a state's disciplinary decision concerning only an individual. (John Doe v. E.E. Pringle (10th Cir. 1976) 550 F.2d 596 ["[F]ederal courts do exercise jurisdiction over many constitutional claims which attack the state's power to license attorneys involving challenges to either the rule-making authority or the administration of the rules [citations] such is not true where review of a state court's adjudication of a particular application is sought."])

While practical politics might explain Clinton's failure to appeal, to my knowledge, no legal commentator raised the federal preemption issue. One consequence of the dearth of significant controversies in State Bar court is that commentators have little interest in the decisions. Considering the critical role the State Bar or Bar-equivalents play in regulating the practice of law, the commentators are misguided in their apathy.

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. 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?

One event demolished the State Bar establishment’s effective reliance on disbarment as a mark of Cain, to anchor coercive power: the 5-year disbarment of a sitting U.S. President, when the Arkansas Supreme Court disciplined then-President Bill Clinton, after a majority of the U.S. Senate failed to convict, and not a single Democratic Senator voted for conviction. The outcomes implied that one may be ethically qualified for the United States Presidency, yet lack the morals to practice law in Arkansas, a conclusion that the cynical and the idealistic both must reject. Either the U.S. Senate or the State of Arkansas’s State Bar Court equivalent was out of touch with American morals, and it wasn’t the Senate. Clinton's approval rating soon rose to an unprecedented 73%.

Clinton was disbarred based on a federal district court's order citing Clinton for contempt in the Jennifer Flowers proceeding. The allegedly contumacious conduct consisted of false statements Clinton provided in deposition, violating the court's discovery order. The court focused on two false statements: that Clinton had never been alone with Monica Lewinsky and that he had never had sexual relations with her. The Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas professional practice rules 8.4(c) and 8.4(d), which make it professional misconduct for a lawyer to:

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice

For one living and litigating under the California Constitution, which declares privacy on par with life and liberty in its inalienability, requiring under the Federal Rules that a litigant inform on his sexual partners seems barbaric. Without a direct showing of relevance to the present lawsuit, a federal plaintiff can force exposure of the most personal information. While a court should assign some culpability for the generalized offense of lying in court, it should also consider the altered ethical context, depending on the personal decision the respondent actually faced. Bar Rules typically distinguish different grades of unethical conduct, and the Arkansas rules offer this discussion of moral turpitude:

Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

There are other relevant measures of ethical magnitude, however, such as between breach of basic moral rule (malum in se) and breach of administrative regulation (malum prohibitum). Both malum in se and malum prohibitum infractions have some ethical relevance, but only malum in se violations are usually taken to indicate turpitude, because malum prohibitum infractions reflect only the single trait of law abidingness. While the rule against lying in sworn proceedings is malum in se in form, the underlying obligation to allow routine discovery of one’s sexual partners is malum prohibitum. There is no moral inevitability today for judicial access to all information potentially relevant to civil litigation; no moral inevitability today to afford civil litigants easy intrusion into an opponent’s sexual relationships; no moral inevitability today about holding the threat of future judicial inquest over every unconventional private act a person performs. California privacy law proves the absence of such moral inevitability. Lying to protect personal information from an ethically dubious intrusion is malum in se, insofar as it involves lying, and malum prohibitum, insofar as it involves a failure to comply with the discovery order requiring disclosure. The Arkansas Supreme Court Bar arm didn't consider the ethical dimension in sufficient depth, because it responded with the bureaucratic reflex and moralistic rigidity typical of the State Bar establishment, using the single amorphous concept of moral turpitude to erase distinctions.

The ethical crudeness of the Clinton disbarment decision, however, was not its main failing. The Arkansas Supreme Court should have been subject to federal preemption. It exceeded its jurisdiction in disciplining a President for his conduct as a Federal office-holder. The states have no jurisdiction to control the exercise of Presidential power or of the President's performance of his duties.

The court might have agreed, as it created the impression of imposing the sanction for conduct it observed during the Flowers proceeding, involving personal rather than Presidential conduct. Clinton’s grand jury testimony during the Special Prosecutor’s investigation of his Presidential conduct impeached his Flowers testimony, said the court, but the same logic allows that the Flowers testimony impeached Clinton’s statements to the Starr grand jury. While the district court judge wrote that she directly observed the contumacious conduct, she was mistaken in her evidentiary characterization. She actually observed only a conflict between two testimonial acts. The judge observed or was entitled to take judicial notice of a conflict between Clinton's testimony in his Flowers deposition and his testimony before the Kenneth Starr grand jury, indicating that in one of the two instances of testimony, Clinton was lying, leaving the question a mixed State and federal law question, pre-empted by federal law. The Arkansas court was not entitled to disbar Clinton.

kanBARoo Court. 28th Installment. The Ethics and Pragmatics of Provoking the Prosecutrix

After I learned that the State Bar is an irascible entity, I adopted the tactic of deliberately provoking the Office of the Chief Trial Counsel, through Deputy Trial Counsel Melanie J. Lawrence. Did I entrap the prosecutrix, when I deliberately provoked her with public criticism, causing her to perform extraordinary criminal acts? No one has questioned the ethics of my tactics, but I predict the prosecutrix will incorporate their condemnation in a motion to add "contempt for the proceedings" as an aggravating factor. Most lawyers, on the other hand, will be unsurprised by my litigation tactics, apart from their application to State Bar proceedings.

The entrapment defense provides by analogy the appropriate legal standard in assessing the ethics of provocation, despite the surface absurdity of the police-agency/accused role reversal. If my provocation of the prosecutrix were unethical, it would be for the same reasons that entrapping police conduct is improper: gaining advantage from my opponent’s improper conduct that I caused. No case law in any jurisdiction considers provocative litigation tactics as such, an omission ordinarily implying only that no lawyer would consider zealous but lawful conduct designed to unhinge an opponent anything but proper. The unprecedented nature of such an allegation would ordinarily suffice to rebut it, except in a State Bar case where an aggravation is assigned. Aggravations include numerous supposed ethical infractions never discussed in those terms.

The U.S. Supreme Court continues to be divided on procedural aspects of the entrapment defense, with the California courts carrying over aspects of both the majority and minority opinions, but on the matter of entrapment's definition, the majority, minority, and California positions do not substantially differ. Under federal law, the "controlling question [is] whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." (Sorrells v. United States (1932) 287 U.S. 435, 451.) The Supreme Court minority defined entrapment similarly as “the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” (Id. at p. 454 (dis. opn.)) From these definitions follows the test: "the likelihood that [police conduct] would entrap only those ready and willing to commit crime." (Sherman v. United States (1958) 356 U.S. 369, 384 (dis. opn.))

Three facts, their relevance grounded in the definitions and test, speak dispositively against my committing any wrongdoing when I deliberately and successfully provoked the prosecutrix into a state of vicious but self-defeating respondent-directed hatred:

1. My conduct involved no inherent wrongdoing;
2. The concept governing prosecutrix’s misconduct did not originate in my imagination; and
3. The provocation would not have elicited the wrongful conduct from the prosecutrix, were she not predisposed to obstructing justice.

Fact 1. Publishing a blog is an exercise of First Amendment rights. If I libeled the prosecutrix, she has a civil remedy, which she will not pursue, because my accusations are true, and truth is a complete defense to defamation. Employing innuendo biographically likely to enrage the prosecutrix, such as the consonance of ‘prosecutrix’ and ‘dominatrix,’ is recognized as an inviolate part of speech.

Fact 2. Had I suggested the wrongdoing, or tried to convince the prosecutrix she could get away with it, my acts would be ethically tainted, even though violating no Rule of Professional Conduct. How can I complain of the prosecutrix's violation of due process, if her plot originated with me? Entrapment involves planting an idea in someone’s mind, not instigating an emotional reaction. Knowing that the prosecutrix would commit some rash act of oppression, I still had no idea of its nature, which indeed surprised me, because it required the clerk’s collusion.

Fact 3. Inquiry into whether the allegedly entrapping conduct would cause a reasonable person to commit the misdeed reaches the heart of the matter. When the prosecutrix tampered with the court's records, did my provocation make conduct latent within the prosecutrix's soul more probable, or did it place her in state unlike any she might otherwise suffer? Situations that anger persons with prosecutory power are legion, giving prosecutors' faces their perpetual Giuliani-like angry snarl and demonstrating that a deputy trial counsel who rushes to crime in rage will be often enraged and commonly rushed.

Provoking the prosecutrix was a sound litigation tactic, designed to elicit conduct that raises valid questions about the objectivity and legality of State Bar investigations.

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. 27th Installment. Should the mere appearance of impropriety constitute an ethical infraction?

If the State Bar is competent only to smell smoke and presume fire, the Supreme Court may tolerate the Bar's incompetence because under the prevailing concept of legal ethics the appearance of impropriety constitutes an ethical infraction. Under Canon 9 of the American Bar Association Model Code of Professional Responsibility, "A lawyer should avoid even the appearance of professional impropriety." Canon 9 is persuasive in California but not the law, and the most searching analyses have delivered withering criticism. The California Court of Appeal held:

[T]he appearance of impropriety test is no more than "a simple and soulful rubric that seems to make intuitive sense' but whose alluring charms 'are only surface.' [Citation.] … [I]t is unclear as to whom the conduct in question must appear improper. Some courts think it is 'the public' or an 'average layman." … Still other courts believe the opinion of "the bar" is a relevant consideration. ... Even if there were no conflict as to whom the conduct of an attorney must appear improper, judges lack the empirical data necessary to accurately discern the views of the appropriate group…. "[C]ourts lack both access to reliable facts and a workable method for thinking through, on a case by case basis, the question whether the particular result sought by one or the other of the parties will increase, decrease, or leave unaffected the general level of public or client confidence. [Citation.]" (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 307.)

The apparent-impropriety concept remains influential, as shown by the dissenting opinion the cited case bears, as well as another California case that criticized the position quoted because the opinion:

[F]ocuses attention on the end result of the challenged conduct without including the paramount concern of preserving public trust in the scrupulous administration of justice and the integrity of the judicial proceedings." (In re Complex Asbestos Litigation (1991) 232 Cal.App. 572, 591-592.)

While all courts agree on the importance of preserving public trust in the courts and attorneys, they have not overcome the Gregori court's epistemic objections. It is reasonable to assume that preventing actual improprieties will favorably affect the public's perception of the law, but no reason has been provided for thinking that preventing perceived improprieties helps, absent actual improprieties. There is reason to think such attempts to prevent merely perceived improprieties backfire, because a perceived-but-not-actual impropriety banned by law or rule is also a limitation on clients' freedom to receive legal services on their terms, imposed without clients receiving offsetting benefit. Client interests are sacrificed for the system and profession's intended good.

The appearance of impropriety is even more dangerous as concept than rule. It serves as a misleading justification, hiding real significance, sometimes concealing important strengths, sometimes deficiencies. The apparent-impropriety rationale conceals, for example, the real purpose of rules against former-client conflicts of interest, a good rule, capable of rigorous and principled justification, as explained by the Supreme Court:

Clients are entitled to vigorous and determined representation by counsel. It is difficult to believe that a counsel who scrupulously attempts to avoid the revelation of former client confidences--i.e., who makes every effort to steer clear of the danger zone--can offer the kind of undivided loyalty that a client has every right to expect and that our legal system demands. Rule 5 operates to preclude any impediment to the fulfillment of an attorney's professional obligation to his client by proscribing any conflict of interest in his representation of past and present clients. (Anderson v. Eaton (1930) 211 Cal. 113, 117.)

Yet, this sound justification is muddied by the immediately following comment:

It is better to remain on safe and secure professional ground, to the end that the ancient and honored profession of the law and its representatives may not be brought into disrepute." (Ibid.)

Ask lawyers about justifying the rules concerning past-client conflict of interest, and you will get back appearance of impropriety. No one will remember the real analysis presented by the Anderson court. Yet lawyers must know how to draw the line correctly, because every court in California agrees that the appearance of impropriety alone is insufficient.

That is, every court except the California State Bar Court. Without acknowledging it, the Bar Court's procedures derive from the apparent-impropriety rule, because only such a rule could justify the superficial basis for charges, a basis that proves only the appearance of impropriety. Only the appearance-of-impropriety rule can explain the widespread assumption that if an attorney is charged, he must be guilty. The Enforcement Division of the State Bar has won this presumption of guilt by tautology rather than demonstration. If the appearance of impropriety is itself impropriety, as ABA Canon 9 demands, then charged is tantamount to guilt. (See also, 46th Installment, "Origins of the Appearance-of-Impropriety Concept.")

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. 26th Installment. Why is the NDC Unanswerable?

As argument for the upcoming California Supreme Court appeal, my earlier petition to the Review Department of the California State Bar Court suffers by omitting the most persuasive argument: the due-process violation inherent in requiring complete responses to ambiguous statements. The Review Department petition underplayed the practical ramifications of the notice of disciplinary charge’s (NDC's) failure to state disciplinable charges, and it limited practical discussion to mentioning the State Bar's habit of launching undisciplined investigatory "fishing expeditions" based on these improperly drawn opening pleadings. It overestimated the significance of fishing expeditions to a review court considering charges against a lawyer. The ease of adding new charges and the other procedures making undisciplined fishing expeditions threatening to justice demonstrate a public policy unworried about subjecting charged lawyers to these procedures.

This readiness to attach blame upon the Chief Trial Counsel’s issuing charges stems from the subject of the next Installment, legal ethics holding attorneys culpable for the mere appearance of impropriety. Consider the position of the Supreme Court, dedicated to this ethic and believing that the existing State Bar is better than nothing. When the Chief Trial Counsel's office can do no more than see smoke and presume fire, to require definite charges would keep this State Bar from opening a case. The Supreme Court prefers retaining this police function, even at privacy’s expense. Although undisciplined fishing expedition could find all attorneys commit rule violations, the point in itself is unprovable and legally almost irrelevant.

Avoiding undisciplined fishing expeditions primarily implicates the California Constitution's protection of privacy interests, a weaker interest than due process. The oppressive practice of requiring complete answers to ambiguous questions, on the other hand, directly violates due process. (See Commonwealth v. Lambert (2000) 765 A.2d 306 [“[w]hen an affirmative answer is exacted from a witness to a line of questioning loaded with assumptions favoring only the inquisitor, the leading question becomes not a tool of truth but of advocacy and intimidation”]) It is both strength and weakness of this case as a candidate for Supreme Court review that the most important violation of due process is unique to State Bar proceedings because of the expanded role of the initial pleadings, which also serve as interrogatories by requiring complete answers. Contrast the notice of disciplinary charges with the civil complaint and written interrogatories, another method of gathering civil-case information. A civil defendant must answer a verified complaint with specific agreement or denial but, unlike a respondent answering the notice of disciplinary charges:

• Need not provide a complete response or new facts; and
• Can demur to an ambiguous pleading, even if it states a cause of action.

A civil defendant confronted with an ambiguous interrogatory can:

• Object to the question; or
• Impose a reasonable restricted meaning and answer.

An example. The NDC’s paragraphs 19 and 21, count one reads:

Respondent willfully violated Rules of Professional conduct, rule 4-100(b)(1), by failing to notify a client promptly of the receipt of the client's funds, securities, or other properties, as follows . . . By not informing Yoo of the receipt of the medical payment from Infinity, or the Yoo settlement from Farmer's, Respondent failed to notify a client promptly of the receipt of the client's funds, securities, or other properties.

I could straightforwardly deny such an item appearing on a verified civil complaint. If one part of several is false, their conjunction is false, and no requirement of completeness intervenes. If such an item occurred embedded in a written interrogatory or request for admission under penalty of perjury, I could object to the question as ambiguous and refuse to answer. What do I say when answering the notice of disciplinary charges?

1. I deny Yoo was my client, as Kim and his accomplices handled the case secretly, elaborately concealing their criminal acts.
2. I deny any notice or constructive notice of the receipt of the funds.
3. I lack sufficient knowledge to affirm or deny that Kim failed to inform Yoo of the receipt of funds.

At least those points should be noted to comply with the requirement of providing a complete factual response to the allegations. The ambiguities in the charge prevent me from providing a simple, unequivocal answer and, in that way, prevent me from clearly stating my position. Such questions are designed to muddy the respondent's position by requiring the respondent to make numerous artificial distinctions, which the State Bar can distort in presentation to a busy court. (See People v. Crenshaw (1966) 241 Cal.App.2d 289, 296 [unwisdom of defendants’ propensity to "give answers to 'loaded' questions which subsequently may be reported in such a manner that they may appear to constitute evidence of their guilt"])

As it requires complete answers under oath, the Supreme Court should mandate special demurrers. Fortunately, a respondent can often reach these defects based on their failure to state a disciplinable charge. The pleading requirements for stating disciplinable charges preclude the most patent ambiguities by requiring ultimate facts and explanations connecting infractions with rules or statutes. Since these allegations fail to state disciplinable charges, moving for dismissal is a respondent's only rational response.

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Notice of New Posting Schedule

To prepare for the Supreme Court, these Installments will become more analytical, hence more time-consuming to prepare. Consequently, I shall be posting Installments at least twice per week instead of three times per week.

kanBARoo Court. 25th Installment. Petition for Review

The following document is my only major unposted document, left behind because the court clerk notified me of its rejection for filing. Weeks later, I received notice that the Review Department had denied the petition. The petition for review summarizes the arguments provided in both the original motion to dismiss and the motion to reconsider the denial of the motion to dismiss, although those pleadings present each of the arguments more thoroughly. In the next installment, I will analyze the weaknesses of this petition.

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Stephen R. Diamond (State Bar No: 183617)

Legal Research & Writing Service

Supplier of Legal Theories

61967A Begonia Place

Joshua Tree, California 92252

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

The State Bar Court

REVIEW Department - Los Angeles

: :

Introduction

The matter in the Hearing Department is a disciplinary action, entitled “In the Matter of Stephen R. Diamond, No. 183617, A Member of the State Bar.” Petitioner is respondent in the action. The hearing Department of the California State Bar Court has exercised its judicial function in connection with the action described above. The petition arises from the State Bar Court's failure to dismiss the Notice of Disciplinary Charges in the proceeding.

Petition

By this verified petition, petitioner Stephen R. Diamond alleges:

1. On July 9, 2007 the California State Bar filed the Notice of Disciplinary Charges in the above-entitled action. A true and correct copy of that notice is attached as Ex. ‘A.’

2. Respondent filed a Motion to Dismiss the Notice of Disciplinary Charges. A true and correct copy of the Motion to Dismiss the Notice of Disciplinary Charges is attached as Ex. ‘B.’

3. The State Bar Court filed its Opposition to the Motion to Dismiss Disciplinary Charges; a true and correct copy is attached as Ex. ‘C.”

4. The State Bar Court Hearing Department on August 17, 2007 filed and served a denial of the Motion to Dismiss the Disciplinary Charges; a true and correct copy is attached as Ex. ‘D.’

5. Respondent filed a Motion to Reconsider the Denial of the Motion To Dismiss the Notice of Disciplinary Charges; a true and correct copy is attached as Ex. ‘E.’

6. The State Bar Court Hearing Department on November 5, 2007 denied Respondent's Motion to Reconsider the Denial of the Motion To Dismiss the Notice of Disciplinary Charges. A true and correct copy of the order is attached as Ex. ‘F.’

7. The State Bar’s Office of the Chief Trial Counsel on September 12, 2007 served of deposition on respondent; a true and correct copy is attached as Ex. ‘G.’

8. The Deputy Trial Counsel refused on October 23, 2007to continue respondent’s deposition, leading to the State Bar's Motion to Compel Deposition, filed on October 25, 2007 and respondent's opposition to the State Bar's Motion to Compel Deposition, filed on October 22, 2007. The State Bar’s Motion to Compel the Deposition is attached as Ex. ‘H.’ Respondent’s opposition to the State Bar’s Motion to Compel Deposition is attached as Ex. ‘I.’

9. The Hearing Department granted the State Bar’s motion to compel respondent’s deposition, but postponed the discovery until respondent’s answer to the NDC fell due.

10. The issue raised as to whether a Notice of Disciplinary Charges can escape a Motion to Dismiss the NDC is an issue of widespread importance in State Bar cases; the issue potentially affects every respondent.

11. Respondent will suffer irreparable harm if the Notice of Disciplinary Charges is not dismissed through summary review. The only procedural protection Respondent has in State Bar Court is by review. If the State Bar is permitted to proceed, it will be gaining entitlement to invade privacy rights in exercising broad-ranging discovery rights, without having first stated a lawful and disciplinable charge as a predicate to that invasion.

Stay of Proceedings

Respondent has applied to the hearing judge, the Hon. Richard Honn, for a general stay.

Prayer

That the Review Department reverse the Hearing Department’s denial of respondent’s Motion to Dismiss the Notice of Disciplinary Charges.

Executed on November 26, 2007 in Joshua Tree, San Bernardino County, California.

I declare on penalty of perjury under the laws of the State of California that the foregoing is true and correct.

__________________________________

Stephen R. Diamond, declarant

Points & Authorities

1. Procedural prerequisites

Respondent requests interlocutory review under Rules of Procedure, rule 300 of the Hearing Department's denial of respondent's motion to dismiss the Notice of Disciplinary Charges. Respondent further requests that this interlocutory review be undertaken as a summary review, as the matter qualifies under the terms of Rules of Procedure, rule 308.

A. Time for filing. (Rule 300(b).)

Respondent has filed a motion to permit late filing. (See Rules Proc. rule 64(a).) Filing a motion for reconsideration extends the time to file a request for review. The Hearing Deparment denied the motion for reconsideration on November 5, 2007. The petition for review was due November 26, 2007.

B. Interlocutory review (Rule 300.)— Issues not remediable after trial. (Rule 300(a).)

This issue is one not remediable after trial, because the inquiries not authorized absent lawful charges would take place without their support. In other words, the charges would license a fishing expedition, completely unconstrained by noticed charges. Based on the Supreme Court opinions discussed at page 5, line 18 to page 6, line 8 of this document, the Office of the Chief Trial Counsel might plead many other cases in the conclusory fashion this case illustrates.

(1) Importance

Although not a necessary criterion for review by the Review Department of the State Bar Court, the importance of the issue raised would merit review under such a criterion and heightens the importance of providing the review procedure. The issue potentially affects every respondent appearing before the State Bar. I see little reason to think my position extraordinary, because if conclusory allegations are tolerated, nothing would prohibit their flourishing.

C. Summary review (Rule 308.)-- Pure question of law

The sufficiency of the Notice of Disciplinary Charges is reviewed as a matter of law. The question concerns sufficiency of the notice of disciplinary charges, assuming the truth of facts alleged. The only communication received from the court concerning the adequacy of the notice of disciplinary charges was in writing. No argument was conducted orally on the subject.

2. Issues

Under the Rules of Procedure, as interpreted in the Baker v. State Bar line of Supreme Court cases, Rule 101 and Rule 262 work in tandem to determine whether a notice of disciplinary charges survives a motion to dismiss. (See Baker v. State Bar (1989) 49 Cal.3d 804, 816.)

A. More is required than showing that the facts, if proven, would constitute a disciplinable offense. (See Ex. D, p. 1, where the Hearing Department errs in a matter of law. (Rules Proc., rule 224(b)(2).)

Rule (101)(b)(3) requires relating the facts to the laws violated. The trial court denied respondent’s motion to dismiss because “the facts alleged in the NDC, if proven, would constitute disciplinable offenses.” To state a disciplinable offense, does alleging facts amounting to some offense meet the standard requiring the NDC state the infraction-statute relationship?

B. The notice of disciplinary charges must plead ultimate facts, in accordance with general California pleading requirements.

Rule (101)(b)(2) requires pleading facts constituting the cause of action, which means, pleading ultimate facts. Can the State Bar's pleading survive a motion to dismiss, when it pleads only evidentiary facts and legal conclusions?

3. Argument

A. 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, supra, 49 Cal.3d at p. 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.

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 NDC as a whole.

B. The Notice of Disciplinary charges must plead ultimate facts.

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 State Bar Court Rules of Procedure themselves, linking that code section to the practice of ultimate fact-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.

4. Conclusion

Due process considerations aside, the NDC as a document is exceedingly sloppy. The State Bar fails even to number the counts consecutively, with the consequence that counts 50 to 58 appear in the NDC twice. Whatever its reasons, the Office of the Chief Trial Counsel has gratuitiously multiplied the likelihood of confusion.

Respondent has requested a general stay in the Hearing Department. The case satisfies the requirements for interlocutory review and summary review.

Dated:______________

By:	Legal Research & Writing Service

Stephen R. Diamond

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[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.

END DOCUMENT
____________________

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.