67th Installment. Tactical Lessons of the Philip E. Kay Case

The Hearing Department entered Philip E. Kay's default when Kay refused to retake the stand after the Hearing Department judge not only denied objections on matters of privilege — such as the terms of his fee agreement with his former client Weeks — but also began entering his refusals to answer as affirmative inculpating responses. Kay filed a comprehensive petition for interlocutory review to oppose the California State Bar Court Hearing Department's entry of default. Kay's papers in opposition included his promise to resume testifying if the court set the default aside. Without explanation, the Review Department of the State Bar Court recently denied the petition.

Assessing tactics is part of educating respondents in how to fight the State Bar, since lawyers don't usually understand the different tactical terrain in State Bar Court, which, instead of treating them legally, treats all its cases with political animus. Respondents can achieve their legal goals, if at all, only by setting forth the starkest facts and crispest arguments on appeal. Often, a respondent may only hope to make the clearest demonstration of judicial error for the public's edification. In my case, I think that the trial court stood in a weaker position due to its failure to protect the most basic due-process rights than due to its proceeding on a statutorily defective Notice of Disciplinary Charges. Since the adequacy of the NDC is arguable and Melanie J. Lawrence's malfeasance isn't, I opted to rest my case on the malfeasance, despite the cost of default.

I apply the same criterion of outcome clarity to Kay's tactical choices to reach a different conclusion about his default; but note, Kay's tactics should be considered, as the economists say, ex ante: from the perspective of knowledge then available. While we know Kay's default was entered, we don't know that Kay could have known the same or, more importantly, that any attorney any time would suffer the same injustice. We don't know that Kay's attempt to come before an Article 6 court was doomed from the start mainly because we don't know all the political influences at play. Kay's mistake wasn't failing to anticipate entry of default; if an Article 6 court was a probable source of relief, Kay's attempt to reach one wasn't irrational, since success wasn't foreclosed.

Kay's mistake, in my view, was his confidence in the Article 6 courts. The Richard I. Fine case, my case — even the inception of Kay's case — show that the courts of record will not refuse the State Bar. Superior court judges initiated the Fine and Kay cases. In Fine's, Superior Court Judge Yaffe took off from where the State Bar left the matter, and Fine remains in jail, there for more than a half year. In my case, the Supreme Court silently refused to address proof that the Office of the Chief Trial Counsel and a Review Department clerk tampered with the record to cause entry of default.

After putting aside reliance on the Article 6 courts, we still haven't completely answered the tactical question. We have to consider whether Kay leaves a better record by suffering the unlawful entry of default or suffering a finding of culpability unsupported by the evidence. Kay's statute-of-limitations argument based on the Konig documents is highly persuasive; the argument based on the unlawful default is hard for many to understand: the absurdity of the Bar Court's self-proclaimed inherent powers is hidden by the California Supreme Court's vague language from the days when it still pretended to perform its State Bar supervisory duties. (See, for example, Jones v. State Bar (1989) 49 Cal.3d 273, 287 [discretion of hearing referee to exercise "reasonable control over the proceedings ..."].) For impact, Kay should prefer a finding of culpability unsupported by the evidence to an unlawful entry of default.

Interlude 14. That Miscreant Bill Clinton

So an attorney disbarred for alleged dishonesty is trustworthy to represent the U.S. Government ("unofficially") in deals with a nuclear power, lives directly at stake. The public avoids deep confusion only by perceiving disbarment as an act of punishment, not mainly a judgment on character. (See reference to poll at http://tinyurl.com/ld5vl8.) The spectacle brings to fore a question kanBARoo court raised last year: Is Bill Clinton really unsuited to practice law because of (as we say in California) acts of moral turpitude? Or, as kanBARoo court argued, was the Clinton disbarment (technically a five-year suspension) the most dramatic example of state-bar-establishment overreaching, crossing the Supremacy Clause?

kanBARoo court discusses the Bill Clinton disbarment at:

• 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?
  
• 29A Installment. Why didn't Bill Clinton argue federal preemption?
  
• 32nd Installment. Disbarment of a President
  

(To defend Clinton against state-bar calumny is not to endorse his policies, such as his moralistic workfare measures.)

Interlude 13. A Tale of Two (or Three) Blogs

kanBARoo court reached the million mark yesterday. No, not a million subscribers, unfortunately. You reach this mark from the far side: kanBARoo court is now among the million top blogs if what's "top" depends on three-month traffic.

Two companies estimate the popularity of blogs. Alexa bases its estimates on a large (nonrandom) sample of readers; Google on the inbound connectedness with the rest of the Internet. The two measures correlate substantially, but kanBARoo court diverges between Alexa's traffic estimate and Google's link-based estimate, on which kanBARoo court scores 2 on Google's 0 to 9 logarithmic scale. One of my other blogs Disputed Issues, whose traffic rank (about 1.4 million) is significantly weaker than kanBARoo court's and whose Google page rank substantially stronger (4), shows a typical correspondence. Disputed Issues is a half year newer than kanBARoo court and contains half as many entries. (My third blog Juridical Coherence is too new for comparison.)

kanBARoo court may be unequaled in the disparity between its traffic rank and Google page rank, which affects priority in search-result placement. Maybe someone else will examine how Google's search monopoly and its rankings press toward ideologically conforming Internet networks. My interest is monopolization of legal-ethics' discussion and state-bar law by the state-bar establishment. Like many independent dissenters, I link outside my blogs judiciously, but when I do, the links most often point to opposed positions. The state-bar establishment blahgs — the absence of controversy makes them anything but interesting — intentionally avoid pointing to opposed positions or inimical institutions; they link as political tool. One establishmentarian blogger posted as much: "I am not going to link to his post, as that would give him Google juice." (See http://tinyurl.com/loxxgx.)

Contrast the lawblahgs with bloggers opposing the state bars. Whether primarily dedicated to freeing Richard I. Fine (see, for example, http://tinyurl.com/nqjptj), exposing biased judges (http://tinyurl.com/mu6e4h), or rectifying the Ramparts' victimizations (http://tinyurl.com/l59jqd), we seldom cite to each other or feature a blogroll advertising congenial blogs. We're obviously going to show more independence than the state-bar establishment and its cheerleaders, but we also have ideological and legal differences, even literary differences, we don't ignore.

The state-bar establishment, like an ordinary commercial monopolist, trades [links] as means to continue finding advantage in collusive combination. This is their right — although maybe not Google's to furnish the incentives fostering collusion — but the rarefied Internet is only a shadow of the world outside, where to marginalize opposition the state-bar establishment will use all means, including in California redoubling the calumny against state-bar respondents through an early-publications policy.

66A Installment. Officer-of-the-court jurisprudence

Second in the Mark Brennan Series

Judge Robert E. Blackburn's complaint in the Mark Brennan disbarment case permits a glance at the jurisprudence grounding judges who seek to impose state-bar discipline for ordinary trial conduct. Judge Blackburn approvingly quoted the Polansky court ("Complainant's Response to Respondent's Motion To Dismiss"):

Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means for achieving the court's ultimate goal, which is finding the truth.

(Polansky v. CNA Ins. Co. (1st Cir. 1988) 852 F.2d 626, 632.)

The Polansky court and Judge Blackburn express three opinions that are contrary to professional consensus: 1) A lawyer's primary responsibility is not to his client but to the court; 2) zealous advocacy is encouraged only as a means of reaching the court's goals; and 3) the court's ultimate goal is truth.

Usually, first-year torts classes dispose of the cartoonish view that the court's ultimate goal is truth. Many public-policy considerations having nothing to do with truth's pursuit drive civil procedure, but although the Polansky court and Judge Blackburn are outside the professional consensus, the consensus makes a dangerous concession in accepting that the adversarial element serves truth finding: truth emerging from conflict. Our legal system as a whole obviously doesn't subordinate all interests to truth finding, yet many lawyers believe adversarial procedures exist to promote truth. This view leads the consensus toward endorsing Polansky's conclusion, while rejecting its reasoning — leads to limiting legitimate adversarial conduct to what furthers truth finding; but truth finding isn't adversarial procedure's distinguishing function or its overarching purpose. In overall accuracy an inquisitorial system is inherently superior to an adversarial one: does anyone think that testimony from hired gun experts better informs a jury than neutral investigators chosen by an unbiased judge? A trade off of lower accuracy for less rights-violating injustice, adversarial procedure favors rights protection over truth finding. Rights protection, not truth finding, justifies adversarial process.

Judges who believe fealty to the court's truth-finding ideals outweighs loyalty to client will consider extraordinary loyalty as misconduct. These judges' naive moralism doesn't promote precision; the judge espousing an open-ended duty owed the court is subjective. A court holding an officer-of-the court jurisprudence will be dissatisfied for the same reason a client is unhappy: the lawyer's limited zeal for itself.

In contrast to the moralism of Judge Blackburn and the Polansky court, the Koufakis trial court (unfortunately reversed) took a sophisticated, nonmoralistic perspective in deciding an attorney's conduct didn't warrant a new trial. Pointing out that "wrenching little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial, and in my opinion there was not the prejudice [which the defendants] suggest," the judge further explained to the attorney moving for an order declaring mistrial:

Your style is entirely different from Mr. Berg's, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. ¶ Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. ¶ If you had mentioned the Mafia, then they would have taken you literally. ¶ Mr. Berg's mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. ¶ They simply didn't take this kind of analogy seriously. ¶ This is the kind of exaggeration that they had come to expect from a flamboyant individual.

(See Koufakis v. Carvel (2nd Cir. 1970) 425 F.2d 892, 901.)

The trial judge candidly admits he prefers the less flamboyant style — it's easier on the judge. When a less insightful or less honest judge replaces concrete legal reasoning with moralistic judgments, often they screen for the judge's prejudices.

Click for entire Mark Brennan series

Ten-Day Sale

I live in the high desert of California, where this time of year the temperature regularly climbs above 100 degrees. One seldom ventures outside in this weather, leaving abundant time for work. Seeking more work to occupy more time, I'm declaring a ten-day sale on legal-writing projects. This sale, ending after August 10, features a $50 per hour fee. For any state-bar or vexatious-litigation matters, the price is only $30 per hour.

66th Installment. Threat to advocacy from overdeterrence — The Mark Brennan case

First in Mark Brennan series
Judges who minimize law's adversarial element will use the state bar to punish successful attorneys. The judge and complainant in a Colorado case, similar to the Kay case in California, exposed the jurisprudence that underpins disciplining for zeal. This first Installment in the Mark Brennan series sets out the case background.

Attorney Mark Brennan seemingly won his client a $1.2 million age-discrimination award against his employer the City and County of Denver, but Judge Blackburn declared a mistrial based on Brennan's allegedly prejudicial misconduct, mostly speaking objections and the like. A $850,000 settlement ensued. The judge also complained against Brennan to the state bar. The case is similar to the Kay matter in California: 1) respondents had been successful in court; 2) respondents conflicted with a powerful embroiled judge, who caused the courts to treat the matter as political, instead of legal; 3) respondents had long, successful careers without prior discipline; 4) courts have denied respondents discovery and other evidentiary rights concerning bar deliberations; and 5) respondents received no final judgment against their conduct in the underlying case. (But the cases aren't identical. First, overt procedural irregularities are present in the Kay case because Kay was defaulted, Brennan wasn't. Second, the kinds of character attacks each faces is different, in that Kay has never been accused of violence; but the character attacks against Brennan, too, may be inaccurate.)

The Brennan prosecution admits that Brennan's specific acts don't constitute misconduct, but it argues that the totality of evidence proves it: even if the prosecutor can't articulate a definition, he knows misconduct when he sees it! Brennan's prosecution and Kay's portend that attorney-misconduct's vagueness will compound disbarment's ultimacy to overdeter, suppressing vigorous trial advocacy. Unsure of the line between aggressiveness and misconduct, advocates become obsequious, knowing a mistaken speech register risks their livelihoods. A hostile judge will crush a case, augmenting judicial power the hidden purpose of disbarring attorneys for trial misconduct when borderline misconduct non-normative only in amount is alleged. Attorneys gamble on distinctions and accept the reasonable risk of mistrial. Good trial attorneys readily adjust their behavior to new trial contingencies, but none will venture on the extraordinary risk of disbarment.

While the Brennan case lacks the Kay case's procedural infirmities, it contains an oddity. The judge declared a mistrial only after the jury rendered its verdict. The only new fact was how long the jury deliberated, three hours, for an eight-day trial. The judge implies the duration was excessively brief, but, while the law allows declaring a mistrial because the jury deliberated a disproportionately long time, Colorado's Supreme Court ridiculed declaring mistrial for brief deliberation. (Sepulveda v. People (Colo. 1961) 361 P.2d 625, 626.) Even if the judge can justify mistrial based on his mere change of mind, his close decision fails disbarment proceedings' clear-and-convincing-evidence test.

Next in Mark Brennan series: The jurisprudence of judicial vindictiveness

65th Installment. The state-bars’ public-protection myth & the misguided remedy of suspension

The state bars' official purpose centers on public protection, but the state bars' real purpose has always been punishment and deterrence. The mischaracterization serves both public-relations and legal purposes.

The public itself doesn't see state bars as functioning for protective purposes. A recent Los Angeles Times editorial expresses the common attitude of the public:

Whether Yoo or Bybee breached legal ethics in that way has been the subject of an investigation by the Justice Department's Office of Professional Responsibility, which can recommend discipline to state bar associations. That process, not a civil suit for damages, is the best way to hold lawyers accountable for malpractice.

http://tinyurl.com/mvyt4z

This is the widely accepted popular view: state-bar discipline holds lawyers accountable; but holding accountable isn't a public-protective function. Accountability is the essence of deterrence, the primary function of punishment, and a component policy behind civil-litigation procedures.

When state bars claim their purpose is public protection, the bars focus only on the severity of detriment, on which its opinions, as well as those of the courts of record, dwell. A punitive system should match severity of deterrent to offense's seriousness and inversely to probability of apprehension. A protective system, in contrast, should match preventive measures to likelihood of committing further harm. Neither courts nor legislatures analyze the class of disciplinary measures serving the screening function assigned to state-bar discipline: most notably, what role does graded discipline serve for a system supposedly protective? Punishment by degrees of severity suits a deterrent or retributive system, where punishment should fit the crime.

Suspensions play no rational role in a protective system because character defects aren't time limited. Courts surreptitiously slide into a deterrence-oriented mental set when they impose suspensions. Deterrence is secondarily protective, confusing the issue when the state bars insist they are not deterrence's instrumentalities. The public accepts punitive but unprotective disciplinary measures, such as suspensions, because of tacit recognition that civil litigation insufficiently deters.

Understanding that state bars provide a deterrent that the Legislature can't abolish without replacement is a first step both in compelling the state bars to stick to actual public protection and reforming the laws governing civil litigation so they deter attorney misconduct. Attorneys today are already subject to a few civil sanctions for technical misconduct. When an attorney improperly divides a fee, it is forfeit. That's enough deterrence to render the state bar rule against fee splitting — hardly an index of moral turpitude — unnecessary for deterrence's purposes. This law illustrates how to deter the range of technical misconduct falling short of moral turpitude: relieve the wrongdoer of his ill-gotten gains. The mechanism can be widely applied to the gamut of misconduct violating rules and statutes deemed administratively necessary for the profession. If the attorney, for example, engages in unlawful solicitation, allow the solicited party's refusal to pay attorney fees, enforceable in the civil action or in the underlying action. Wrongdoing not involving moral turpitude in the strict sense shouldn't concern the state bars, and moral turpitude should have only one disciplinary consequence, disbarment. Disbarment is the only disciplinary measure serving a strict screening function; limiting discipline to disbarment follows from limiting the state bars to the protective function they claim as exclusive domain.

The expressed policy of public protection, not the actual policy of deterrence and retribution, is the correct policy, but the public-relations myth of state-bar dedication to public protection forms the basis for denying state-bar respondents the protections favoring criminal defendants. Proof before state bars need not be beyond a reasonable doubt, and a jury doesn't find culpability. In state bar matters, proof is in principle by clear and convincing evidence; a respondent in reality is lucky if afforded a preponderance-of-evidence standard. Prosecutors decide that a case goes to trial, one sub-Article 6 judge decides the facts, and state-bar respondents can't plead self-incrimination when inculpating matter concerns only state-bar charges. These practices would never survive constitutional scrutiny if courts recognized that state bars mete out punishment.

64D Installment. Ha!Ha! The State Bar Court thinks it has inherent powers

(5^h in Philip E. Kay series)

The State Bar's justification for defaulting Philip E. Kay has evolved or rather devolved. The State Bar first argued that discovery procedures could do double duty at trial. Unable to support this argument to justify radical expansion of discovery's domain, the State Bar tried a different line: failing to appear at trial includes refusal to testify. Still without an argument to make respectable its self-serving deafness to all distinction, the State Bar's July 1 reply emphasizes yet another fantastical theory: the State Bar Court's "inherent powers" authorize striking Kay's answer.

Despite an extensive California case law on the inherent powers of courts, the State Bar quotes no California cases; introducing California law would make this argument's meritlessness too obvious, since under California law the inherent powers of the courts derive from Article VI, section 1 of California's constitution. (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267.) The constitution defines "courts of record": the superior courts, Court of Appeal, and the Supreme Court; as only Article VI courts of record have inherent powers, the State Bar Court has none. "[E]very court of record has powers requisite to its proper functioning as an independent constitutional department...," the Supreme Court repeatedly recites. (Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [emphasis added].) Inherent powers are specific to the courts of record because these powers are based on the separation of powers between governmental departments, a club the State Bar Court doesn't belong to. The State Bar Court has no judicial powers — hence, no inherent judicial powers — these vested in the courts of record.

The constitution vests judicial power in specific courts and denies judicial power to all other agencies. Many institutions nominally "courts" aren't courts for constitutional purposes. The Supreme Court resolved where the inherent powers of courts end when it held that striking an answer is an unconstitutional sanction without an order from and hearing before an Article 6 judge. (Summerville v. Kelliher (1904) 144 Cal. 155.) Commissioners, notaries, and other sub-Article 6 judicial officials, such as State Bar Court judges, could not thereafter constitutionally exercise any supposed inherent power.

The State Bar Court, an administrative arm of the California Supreme Court, doesn't inherit the Supreme Court's powers. The State Bar Court is a statutory creation, and statutes alone define its powers — none inherent.

Interlude 12. State-bar establishment: Pro bono for the banks

As the economic depression deepens so does political oppression, as the police are the instrument forcing an adverse orderliness on the enraged and impoverished. When banks today mount a collections' offensive against the public that financed their rescue, what role will lawyers play in helping the poor and indebted resist the onslaught? None if the state bars, specialized branches of the police-prosecutor apparatus, have their way. In three jurisdictions, the state bars have already disbarred or denied admission to lawyers for carrying excessive debt. For the state bars, indebtedness is moral turpitude!

In New York, appellate judges, who form part of that state's bar establishment, held Robert Bowman ineligible to obtain a law license for reason of moral character, that reason being specifically: "Applicant has not made any substantial payments on the loans. ... Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law." Bowman had incurred the typical huge debt to finance law school and then experienced medical adversity, impairing his ability to work and adding much more debt.

In another case, a Texas lawyer was disbarred for defaulting on his student loan; the court opined that Frank Santulli III's nonpayment showed his untrustworthiness to represent clients and raised the specter that "he will harm a client, obstruct administration of justice or violate the disciplinary rules." To make no mistake on where the bar stands on indebtedness, the Texas State Bar had conditioned Santulli's license on paying his debt. A news report informs that the Texas case isn't isolated: Minnesota had already disbarred an attorney for student-loan default.

Installment 64C. The State Bar Court gets even more illogical

(4^th in Philip E. Kay series)

The State Bar Court's Hearing Department has in fact narrowed — to a single issue of statutory interpretation — the issues on entering Kay's default and striking Kay's answer in reprisal for Kay's refusal to retake the witness stand. The State Bar claims entitlement under State Bar Rules of Procedure rule 201 to enter Kay's default for the refusal. Rule 201(b)(3) states:

If a respondent fails to appear as a party at the trial when that respondent's default had not previously been entered in the proceeding, then the Court shall order the Clerk to enter that respondent's default if the respondent has not appeared at trial.

The Order of June 17 encapsulates the State Bar's notion that testifying is part of "appearing" under rule 201:

Imposing sanctions for a party's failure to comply with a notice to appear at trial to testify is not a novel issue. ... Our rules of procedure therefore expressly provide for the imposition of sanctions for a party's failure to comply with a notice to attend trial to testify.

The narrow issue is: does a respondent fail to "appear at trial" when he refuses to retake the witness stand? Since this narrow issue has become dispositive, it deserves deep analysis, despite apparent triviality. I provide a skeletal textual analysis here.

Black's Law Dictionary's definition of "appearance" expands on the English dictionary definition, "coming formally before the court":

A coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court. The voluntary submission to the court's jurisdiction.

In civil actions the parties do not normally actually appear in person, but rather through their attorneys (who enter their appearance by filing written pleadings, or a formal written entry of appearance). Also, at many stages of criminal proceedings, particularly involving minor offenses, the defendant's attorney appears on his behalf.

Although "appearance" is used for a spectrum of acts from accepting the court's jurisdiction to coming to the courtroom on a specific matter, the common thread throughout these related meanings includes the notion an appearance is a kind of act that can ordinarily be performed equally by a party or his attorney; this meaning excludes testifying. Testifying isn't part of "appearing" because a party can ordinarily "appear" by counsel.

Usage in the State Bar's Rules of Procedure corresponds, as rule 210 shows:

The respondent has an obligation to appear at trial unless default has been entered and has not been vacated. The respondent may appear through counsel rather than in person, unless the respondent is properly served with a trial subpoena or notice to appear at trial.

An appearance is a kind of act that an attorney can perform for a party. Hence, "appearance" would change its meaning within the same set of rules if the term included testimony when applied to a party. Consider what happens if a party's attorney is called to testify in his client's case, and the attorney refuses. The client has appeared by attorney, and the client's appearance is unaffected by the attorney's refusal. Since the client can appear by attorney or in person, the party's refusal to testify doesn't negate his having appeared. Otherwise, "appear" would mean to attend and testify when applied to a party appearing in person and would mean merely to attend when applied to a party acting through attorney. Consistency requires construing "appearance" as merely attending. "Appearance" doesn't include testifying.

Philip Kay should prevail on his motion. Let's hope he raises the right arguments and doesn't bog down in discussion of legislative history. Sometimes we must move in a direction opposite to that suggested by Oliver Wendell Holmes Jr. when he remarked that experience plays a bigger role in law than logic. The key issue in the Kay matter has become one of textual interpretation, and logic will rule.

Interlude 11: Drexel and the DAs

Chief Trial Counsel Scott J. Drexel's removal has so demoralized the California State Bar bureaucracy that its trial counsel have succumbed to temptation to do the unthinkable: debate a former respondent. The discussion was at Crime and Federalism, a proprosecutorial blog, which bemoaned Drexel's firing. To start toward the end with comments by a current state-bar respondent, an elderly and disabled attorney, who describes his ordeal before the State Bar:

Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish. I know enough from experience the Drexel marching order is a "take no prisoners" operation that justifies its inquisition by parroting "We're protecting the public." Anybody critical of Scott Drexel must be opposed to protecting the public. Right? Drexel's M.O. has been to squander millions in building an empire devoted to destroying the sole practitioner, preferably elderly and disabled,while the big firm lawyers only find their licenses lifted due to federal court convictions. Do not believe the State Bar prosecution press releases as they are strictly public relation promotions like the above.

Attorney William Wells later added:

Further to the Scott Drexel playbook. During a continued trial I sufferred multiple fractures from a fall that required surgical repairs, hospitalization and bed confinement so I obtained a Declaration from a physician aware of these facts and filed it with a motion to continue in the routine manner in such events. Unknown to me, the Deputy trial counsel Erin M. Joyce secretly issued a subpoena for the personal appearance in court of my physcian over a two week span and caused a week of stalking, trespassing and harassment by a State Bar Investigator of my physcian at his home, office and hospital. Despite no personal service, Erin Joyce, trial counsel, caused to be prepared a false Declaration of personal service that only surfaced when a Motion to Quash was filed by my physcian and disclosed that the Declaration of Service was on its face totally illegal. The court agreed and granted the Motion to Quash but no sanctions or attorney fees and no redress by a tort action for abuse of process. If I need a Declaration from my physcian what would be your response? and his response? Who could blame him? This is an example of Nifong-Drexel protecting the public. [My emphasis, for legal significance.]

My only disagreement with poster William Wells is: "Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish." To the contrary, I think readers can appreciate the thuggish mentality of the State Bar simply by reading its contributions to the discussion. The State Bar communicates with telltale signature rhetoric, immediately conveying how it views its function.

The first commenter was a former State Bar prosecutor who recycles his public relations blurb for Drexel. His boilerplate included this observation: "Not one of the cases I brought to trial resulted in a finding of no culpability." This half-truth is the standard argument for Drexel's project of public posting from a case's inception, and I pointed out that the relevant statistic — even if you trust the Bar Court to provide the criterion — is the percentage of charges dismissed with prejudice, since public posting accuses the attorney of the full set of charges. The Bar Court dismisses the majority of charges!

Normally, the State Bar wouldn't compromise its arrogance or risk exposing its bad motives and poor competence by intervening in a public discussion. The State Bar is so unused to contention that it can't state a rational argument. Instead of dealing with my point about the dismissal with prejudice of most charges, never answered, the at-the-time-anonymous poster referred readers to my State Bar member record; nothing more except to put "position" when referring to "Mr. Diamond's position" in scare quotes.

Back to my quibble with William Wells concerning the need for first-hand experience to appreciate the State Bar's oppressiveness. From the ad hominem method of obfuscation alone, one could already surmise much. The signature use of scare quotes in place of arguments sufficed to categorize the poster as a bar prosecutor. When he replied to my response, which pointed out his refusal to identify himself while attacking me personally, he compromised and signed with his first name, "Patrick": my old friend Supervising Trial Counsel Patrick O'Brien. O'Brien was in charge of my case at the beginning. After he made some intemperate remarks, such as alerting me that he would report my refusal to comment orally as an admission, he transferred the case to our prosecutrix, Melanie J. Lawrence. Apparently the bar thought the case needed a "woman's" touch. [Scare-quote irony intended.]

Apart from these hints to William Wells and others on how to detect oppression at a glance, I want to deal with one other question the Crime & Federalism article raises concerning the Drexel removal: Drexel's prosecution of several San Diego deputy district attorneys. District attorneys usually avoid any bar investigation, but the reason isn't that the bar is reluctant to prosecute district attorneys. The judges, through California's Chief Justice of the Supreme Court, are the only sufficiently centralized authority capable of exerting major power over bar affairs, and district attorneys' withholding evidence doesn't please Chief Justice George. The reason that the State Bar emphasizes civil attorneys is financial. The State Bar zealously enforces attorney trust accounts because the State Bar is the their hidden beneficiary: it receives the interest on most accounts, and the State Bar's authority to disburse these funds augments its power; any trust account violation, any instance of commingling in regular accounts, takes money at the State Bar's disposal. While the client suffers delay following misappropriation, the State Bar is the loser. Misappropriation and comingling are the State Bar staples and the trust accounts the glaring conflict of interest, but, recently, court-order violations have been prominent. To understand the change, more important than the rise and fall of Chief Trial Counsel Drexel in the California bar is the rise of Chief Justice George in the California courts.

The problem with the district-attorney prosecutions isn't inherent wrongfulness. Despite the hypocrisy of the State Bar's prosecuting other prosecutors for withholding exculpatory evidence, district attorneys who withhold evidence and who violate court orders by lying deserve disbarment — harsher discipline than imposed. The problem is the tardiness of these prosecutions, taking place under the State Bar's unlimited statute of limitations for cases the Bar claims to initiate. The lateness shows the prosecutions were at the behest of judges who continued to be dissatisfied with these officers of the court after the ordinary statute of limitations expired. The state-bar-establishment's loyalist defense wing, not the DAs, made the effective response to the district-attorney prosecutions — confirmed by the direction of a phone call preceding the ouster: district attorney to influential bar-defense-counsel Margolis.

Installment 64B. State Bar tries to apply discovery procedure to trial testimony (Third in Philip E. Kay Series)

Count on the State Bar to do everything possible and some things impossible to take a default. In my case, Deputy Trial Counsel Melanie J. Lawrence failed twice before resorting to villainy, with help from both the Hearing and Review Departments, to get a terminating sanction. The Hearing Department defaulted Philip Kay when he refused to retake the stand after a week's misruling on his objections.

Kay argued that Rules of Procedure of the State Bar, rule 187, provided the State Bar's only remedy: referring the case to the superior court for contempt proceedings. The Bar Court held that it could use rule-186 procedures, which allow imposing terminating sanctions against discovery abuse. (See http://tinyurl.com/nax68j at p. 45, for both rules.) Rule 186 applies to discovery and allows application of the gamut of procedural sanctions, including termination. Rule 187 applies to "witnesses" and allows referral of nonappearing or uncooperative witnesses to superior court for contempt proceedings. Since rule 187 deals with witnesses, it covers both discovery and trial. If, as the Hearing Department contends, rule 186, despite saying otherwise, applies not only to discovery but also to trial, supporting that interpretation requires explaining why two separate rules exist to redress the same transgressions. On the Hearing Department's interpretation rule 186 and 187 collapse with the addition of contempt proceedings to the misnamed discovery sanctions in rule 186.

This uniquely broad concept of "discovery," that includes testimony at trial, is at odds with rule 186 itself. Rule 186, which authorizes using the Civil Discovery Act for discovery in Bar cases, incorporates the Civil Discovery Act into the Rules of Procedure of the State Bar, but rule 186 doesn't otherwise extend the Discovery Act's scope; the rule only limits its application in State Bar cases, prohibiting arrest and placing conditions on case dismissal. When the State Bar expands the scope of rule 186 to include trial, it goes beyond the underpinning Discovery Act. If section 186 applies to refusals to testify at trial, then the superior court using the Discovery Act, which rule 186 applies to Bar cases, could invoke the Act's sanction provisions to handle refusals to testify in a civil case. The State Bar argues respondent's refusal to testify justifies imposing discovery sanctions because the refusal thwarts the Bar's ability to prove its case in the same way as respondent's refusal to participate in discovery. The State Bar and the Bar Court should inquire why under the Rules of Civil Procedure the superior court couldn't invoke the Discovery Act to default a defendant who refuses to testify in a civil case.

Why then the policy distinction between refusal to testify at deposition and trial, only the first engaging the Discovery Act? During discovery either party's refusal to cooperate prevents the opposed party from building a case, but at trial the parties' positions are no longer analogous. If the plaintiff or petitioner takes the case to trial, that party presumably has sufficient evidence to prove the case. (See Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 714 [public policy disapproves of relieving plaintiff from meeting his burden of proof by defaulting defendant at trial].) The State Bar's need for Kay's extended trial testimony demonstrates the State Bar knowingly took the case against Kay to trial lacking the wherewithal to prove it.

Interlude 10. California State Bar Decapitated

The State Bar board of governors fired Chief Trial Counsel Scott J. Drexel yesterday. The discharge is effective next Wednesday; Drexel's contract won't be renewed. State Bar opponents can celebrate Drexel's fall as partly due to their efforts, but they shouldn't expect fundamental change in State Bar practices, which are rooted in its structure, its rules, the provisions of the State Bar Act, and the outlook of the national state-bar establishment.

Scott Drexel fell in a rift between the California State Bar establishment's prosecutorial and defense wings. The various grades of bar trial counsel support Drexel because he allowed the junior prosecutors to run rampant over attorneys' rights, but Drexel's retributionism hurt business for the State Bar's defense wing. Attorneys specializing in State Bar defense are predominantly former state-bar trial counsel. They remain genial with their erstwhile colleagues, who favor these tainted defense counsel in plea bargaining. The State Bar trades lesser discipline — truly an irrelevant consideration for most respondents, whose careers are destroyed by any public discipline — for respondents coached against contention. Under Drexel the deals have been fewer, disadvantaging the State Bar defense establishment and propelling it into a separate professional organization.

Likely the breaking point for the board of governors — which decided in an undemocratic closed meeting — was Drexel's attack on some lawyers as mortgage scammers. Drexel without clear authority required dozens of attorneys to answer inquiries, although he charged few.

Drexel prosecuted more often, seldom settled significant cases, and investigated extravagantly to justify the State Bar's budget during this economic depression. Unfortunately, more than expressing concessions to opponents of State Bar oppression, the rift between Drexel and the State Bar staff, on the one side, and the state-bar defense establishment and other attorneys whose income Drexel crimps, on the other, expresses interests competing for California's diminished fortunes.

Installment 64A. Exculpation by Time Bar (Second in Philip E. Kay Series)

The State Bar can prosecute a lawyer whenever it pleases, as though the smallest State Bar violation is tantamount to a capital offense, where no limitations period applies because of the deed's heinousness. While the State Bar's jurisdiction for any violation extends to the length of an attorney's career, an ordinary complainant, such as a consumer of legal services, is not similarly entitled. The statute of limitations for a complaint initiated by ordinary citizens — still too long — is five years from the attorney's misdeed. (Rules Proc. State Bar, rule 51(e).)

Those empowered to reach decades into the past to punish abominations, such as regards who a lawyer shares fees with, include — in addition to the State Bar itself — judges. Not so under law, but one practical truth the Kay case establishes is judges count among those entitled to bring tardy charges; only they don't do it openly. The State Bar's freedom from limitation by any time bar serves as a cover for judges, who might want to avoid turmoil until they're, say, securely ensconced in federal court.

Philip Kay may be entitled to dismissal on statute-of-limitations grounds because most of the charges describe events more than five years old, but the State Bar made a secret of complaining-witness Judge Anello, now on the federal bench, and it denied that any complainant had been involved in charging Kay. The Bar claimed the action was completely Bar initiated, but recently unsealed documents show the State Bar was lying, and it knew itself engaged in misconduct throughout its collaboration with Judge Anello.

The documents were unsealed from an employment-related suit by a former deputy trial counsel (Konig). Konig now says he'll testify that ex parte communication is rife between State Bar trial counsel and judges, but, by the contents of the unsealed documents, he differed from his superiors by being even more of a toady. Supervisory admonitions to Konig show what the State Bar tried to conceal, such as:

You are creating all types of potential pratfalls to him [Judge Anello] being a successful witness in the proceedings by involving him in your charging decisions, etc. - Lawrence J. Dal Cerro (Assistant Chief Trial Counsel), quoted in Kay/Dalton Supplemental Motion to Dismiss (filed April 24, 2009).

Meanwhile, Konig laid bare the obsequiousness of the State Bar to judges, unfortunately, by example:

Judge Anello turned to us for help and has been extremely patient and understanding with the delays which are difficult to justify. The longer we continue to delay, the more disgruntled and less committed Judge Anello becomes.

The State Bar still denies Judge Anello was a complaining witness, and it argues that, since he wasn't, the Bar withheld nothing exculpatory from Kay. As the e-mail to Konig above shows, the State Bar was trying to hide Judge Anello's initial involvement and believed, unlike Konig, that it had to limit that involvement, but evidence doesn't have to be certain in its import to impose a duty to turn it over. At the least Kay was entitled to explore the State Bar's embroilment with Judge Anello.

The State Bar claims that Kay hasn't shown the withheld information's materiality, but what would make a matter withheld immaterial to a State Bar investigation, when nobody can call the information trivial? Withheld information in a criminal trial is material when it might persuade the jury to acquit or punish less severely. (Silva v. Brown (9th Cir. 2005) 416 F.3d 980, 985.) Kay's favorable options before the State Bar Court include not only acquittal but also dismissal in the interest in justice, and he is entitled to due process in pursuit of either objective. The statute-of-limitations issue goes to acquittal; Judge Anello's involvement otherwise goes to dismissal in justice's interest. What injustices might Kay have discovered if able to focus timely discovery on Judge Anello's embroilment, the Bar's motives for kowtowing to him, and his motives for delay? In a State Bar case the potential repercussions for justice's pursuit make any major revelation presumptively material.

64th Installment. The Philip E. Kay Calumny

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

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

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

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


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

Interlude 9: More Light on Mike Moity's Outrageous Disbarment

Magistrate Judge Methvin joined the fray on R. Michael Moity Jr.'s outrageous disbarment. Judge Methvin posted on "Legal Blog Watch" (http://tinyurl.com/o9yw2k):

I am the magistrate judge in question, Mr. Roberts, and find it quite amazing that you feel comfortable announcing with confidence, not knowing anything about her, that my former law clerk, Ms. Blanke, "had this snarky and royal character and this is why she took notes and then revenge." Ms. Blanke, who now works as a law clerk to a district judge, is one of the most polite, hardworking and dedicated lawyers I know. At the time of this incident, she had worked for me for eight years, and if you ask the members of the Lafayette bar about her, you will hear that she is uniformly liked and respected, and that her attitude to the bar is the antithesis of "snarky" or "royal." As a federal magistrate judge, I consider myself neither a royal nor a bureaucrat, but a public servant - and that is the attitude I work to instill in my staff. Furthermore, this blog does not fully describe the extent and tone of the conversation in question, nor the nature of the previous disciplinary offenses which came to light in the course of court hearings. For that, you will need to read the full, published record. As for Ms. Blanke's desire for revenge, you should know that after the phone call, Ms. Blanke came to my office visibly shaking, upset, and sick to her stomach. She questioned over and over whether she had done something wrong to make the conversation go so awry. Far from relishing her "revenge," she lost sleep for several weeks afterward, and found the ensuing hearings quite painful. It is a shame that your personal experience has left you so bitter and biased that you are willing to engage in gross generalizations which demean all federal judges and their staffs. Mildred E. Methvin

Having reviewed the record, I found despicable Judge Methvin's conduct, not Attorney Moity's. I posted:

Judge Methvin, you are no better than the snarling pack of your supporters, who think nothing more is required to disbar an attorney than to accumulate vague attacks on his character. You would be respondent before a fair disciplinary panel for willfully prejudicing a federal court. You told the court of instances where you had "heard" Mr. Moity had been rude to women, and, in that, you exploited your position unfairly to further your feminist agenda. You repeat the same misconduct here when you dwell on your your clerk's distress, which one can only hope expresses her sense of guilt. Eight years a law clerk? She obviously lacks the mental toughness to practice law.

Former law clerk Bob Roberts, the immediate target of Judge Methvin's post, highlighted the federal judiciary's arrogance:

I clerked for a federal court judge. They are the most pompous people I have ever met and can infect the clerks who become royal. My judge also taught at 2 law schools and used these to hire externs and clerks and from these his girlfriends. The pool of clerks and externs was basically his harem. He hires nearly all young pretty girls. He was known to be sleeping with one of the clerks and his marriage had earlier been broken up because his wife caught him with another clerk. He uses his position to get sex. Despite this, the judge imagines himself to be a pillar of integrity and expects an obsequious manner from everyone. And so did nearly all the judges and circuit court judges I met. The clerks basically defined snarky. Mr. Moity's clerk had this snarky and royal character and this is why she took notes and then revenge.

An an apt reply to Judge Methvin was posted anonymously:

Judge Methvin: I think bob should be sanctioned for his blog comments.

63rd Installment. State Bar Court Review Department: Remorseless Demagogues Lamenting Remorse’s Absence

The California State Bar Court's Review Department is prone to apply a remarkably totalitarian standard in assigning aggravations to offenses: it assigns an aggravation for lack of remorse if respondent denies his culpability. (See Rules Proc. State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(b)(v) [standards for aggravation].) The Review Department is apt to play this mean trick when it wants to affirm the Hearing Department's discipline but can't justify it fairly. The Review Department may further contend that respondent's theory of the case shows respondent is apt to re-offend. Aspersions on the political motives of judges — who, as elected officials, no doubt have political motives — the Review Department receives clinically, as symptoms enhancing the likelihood of repeating. These holdings ignore California law, as California prohibits using a not-guilty plea as evidence of absence of remorse. (People v. Coleman (1969) 71 Cal.2d 1159, 1168.) California law, unfortunately, allows using absence of remorse as a sentencing factor. The hypocritical attitude toward remorse is one of the worst examples of the rampant formalism in criminal law. Remorse is well suited as entry point for the bleakest expressions of the State Bar's show-trial mentality.

The nearly universal practice of using remorse for sentencing intrudes an unctuous sentimentalism into the courtroom. Where is respect for truth when the criminal court punishes honesty and rewards hypocrisy? This regressive parentalism infantilizes participants. Absence of remorse is said to predict recidivism, but defenders of remorse-based sentencing don't present data to support this claim. In natural settings the truly remorseful prove themselves free of that developmental absence of morality termed psychopathy, but psychopaths are often skilled actors. A persuasive show of remorse is too ambiguous for assessing defendants' intractability.

Criminal defendants who plead not guilty, as opposed to those who show their lack of remorse despite a guilty plea, are more likely to repeat and are harder to rehabilitate, but just where remorse is predictive, its use is illegitimate. To require remorse of a defendant who claims innocence violates due process at its foundation, the right to be heard. A defendant doesn't exercise this right when the state puts gun to his head and tells him what to say.

Some courts hold that, after the court convicts him, it can penalize the defendant for lack of remorse if he still denies guilt. But even in the sentencing phase, a defendant can maintain that the high likelihood his conviction was error mitigates the offense, and as it is illegitimate to demand that a respondent claiming innocence show remorse, it is also illegitimate to demand that one admitting guilt acquiesce to the state's view of his offense. Either restriction fetters defendants' arguments.

Sentencing based on whether defendant shows remorse is a common-law inheritance that should be invalidated on constitutional grounds. Criminal-court jurisprudence bases controlling distinctions on where in the trial sequence the court applies a standard, but only in the mind of a formalist lawyer (or a nonprofessional who accepts folk ideology as truth) is there a difference in principle between charging a person for a thought crime or increasinng a sentence for a subsequent thought crime.

Any constraint besides persuasiveness on the content of a defendant's courtroom speech limits persuasiveness by penalizing its straightforward pursuit. A constraint on defendants' and respondents' persuasiveness in the courtroom violates their right to be heard.

(See also 33rd Installment. Remorselessness.)

62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred

The Justice Department leaked a draft report on its investigation of John Yoo and Jay Bybee. The report recommended that state-bar authorities investigate the pair — buck passing: the Justice Department is shirking its prosecutorial duties. The Justice Department can't be so naïve as to anticipate the state-bar establishment might disbar Yoo and Bybee.

Yoo and Bybee had devised irrational legal justifications for torture, helping the Bush Administration disguise its criminality. Even within the Administration, the incoming Office of Legal Counsel repudiated the Yoo-and-Bybee memos in 2003. No lawyer I'm aware of has publicly agreed with the memos' conclusions following publication, and their universally adverse reception discredits the common verdict that the opinions were ordinary errors of law. Since frivolous positions are defined as those unacceptable to any reasonable attorney, universal legal rejection of the memos' conclusions proves their frivolousness.

The torture memos aren't merely frivolous; ulterior motive also makes them vexatious. Frivolous positions often are honest mistakes of law, particularly those advanced by pro-se litigants. Unlike vexatious legal positions, frivolous ones don't show moral turpitude—a standard in California and one I have argued, correctly interpreted, serves as the proper standard for attorney discipline. The Yoo-and-Bybee memos were vexatious in their malicious intent, and their authors committed acts of moral turpitude. Jay Bybee, who coveted the 9th Circuit judgeship that became his reward, is a corrupt careerist. John Yoo is a staunch neoconservative reactionary, who, like his cothinkers, disguises absence of integrity with smatterings of utilitarian ethics. When Yoo decides a policy is best for the "general welfare," he simultaneously decides for its ethical commendability, reaching preconceived conclusions on moralistic grounds.

The state-bar establishment will never disbar Yoo and Bybee, despite their acts of moral turpitude causing injuries extravagantly worse than possible for ordinary lawyers. The concept of the state bar's enforcing ethical standards is thin veneer for pursuing political objectives of state, economic advantages of guild, and financial interests of its own, as the profession's supposed aversion to moral corruption isn't even deep enough for consensus that Yoo and Bybee committed disciplinable offenses.

To avoid challenging state-bar oppression and the ethical hypocrisy justifying it, the California-State-Bar-establishment's loyal-opposition Association of Discipline Defense Counsel justifies state-bar selective enforcement by urging that state bars don't function as an "ethics police" but as a "consumer-protection agency." The analysis is shallow in discounting the generality of unethical conduct that undergirds any protective system. If discipline is to protect consumers, ethical-rule breakers must be apt to repeat. If generalization is impossible, consumer protection is chimera. Pure consumer-protection analysis favors disbarring Yoo and Bybee because they're ethically unfit to practice law, but state-bar bureaucrats' charging Yoo and Bybee for incompetent legal reasoning, willful or not, is absurd to imagine, more so after a prestigious legal academy decided Yoo is sufficiently competent for hire, only 17 U.S. Senators voted against confirming Bybee for the 9th Circuit Court of Appeals, the 3rd Circuit arguably adopted the Yoo-and-Bybee analysis into law, House Speaker Pelosi acquiesced. and the dean of the Chapman University Law School (where Yoo is visiting) commended Yoo's torture analysis.

See also: "75th Installment. The Torture Memos & the Tortured Legal Ethics Justifying CYA Letters"

61st Installment. State Bar: For employers, against employees

National-state-bar establishmentarians discussed the unwarranted discipline for an attorney's trivial misrepresentation regarding the dates of his employment. (See http://tinyurl.com/d4ftll) Here's how the California Bar Journal summarized the case:

[An attorney] was suspended for one year, stayed, placed on two years of probation with an actual 60-day suspension and was ordered to take the MPRE within one year. The order took effect Aug. 1, 2008.

[He] stipulated that he presented an outdated resume to a prospective employer, committing an act of moral turpitude.

He left the law firm where he worked when it downsized and hired a resume writing service. However, his new resume was not ready when he heard about a job opening, so he submitted an old version, without revising the dates of his previous employment. The resume gave the impression that he was still employed.

[He] later faxed a new resume to the prospective employer but it did not clarify his dates of employment.

David Cameron Carr, president of California-bar-defense-establishment Association of Discipline Defense Counsel, commented revealingly:

Yes, it struck me as unduly harsh, as well, but unfortunately in keeping with the punitive mindset of California State Bar prosecutors since Scott Drexel took over as Chief Trial Counsel in 2005. Almost every discipline decision in California and probably most other states recites that discipline is not punitive but exists to protect the public. It is getting harder and harder to keep this pretense up; those of us who deal with the discipline prosecutors on a daily basis in California see discipline driven by a desire to punish lawyers whom they have decided are bad people. As a former discipline prosecutor (and a former member of NOBC) it is distressing. This punitive mindset has galvanized discipline defense attorneys to formalize our defense bar organization, the Association of Defense Discipline Defense Counsel.

Unlike the Mike Moity case, in which an attorney faced discipline for the tone of voice he took with a magistrate's law clerk, the bar justified discipline under the moral-turpitude standard. Moral turpitude is the one true reason for discipline, but this prosecution shows that unequally applying the right qualitative standard leaves injustices: abuse of prosecutorial discretion and biased meddling in attorneys' disputes.

A guilty defendant can rarely mount an equal-protection defense, giving American prosecutors almost unbridled discretion over charging a lawbreaker. (Sheer, Prosecutorial discretion, Georgetown Law Journal (June 1998).) Prosecutorial discretion advantages the prosecutor's office, which can reward cooperative defendants with reduced charges, a process formalized in plea bargaining. When a lie is widespread but the bar prosecutes only an isolated case, the bar institutes a means of unequal treatment usually unchallengable judicially. Who knows what led a prosecutor to select one person to prosecute, what perhaps private and probably corrupt motive induced the bar to file charges in this minor "resume fraud"?

Yet here we can discern a definite purpose: the State Bar's support of the class of employer attorneys, support shown by the unusually high ethical standards applied one-sidedly to business negotiations outside legal practice. Extraprofessional conduct gets less scrutiny in discipline proceedings: attorneys aren't disciplined for a slightly inaccurate apartment-rental application. The negotiations between an attorney and his boss belong to the business of law, not its practice.

What the State Bar refrains from doing also proves its bias favoring employers. If the bar prosecuted employers for lying to their employees, the bar could handle nothing else, so accepted and widespread is the mendacity of employers, including attorneys. Will the bar discipline this attorney's employer when, informed of the applicant's unemployment, the employer denies him the job and protects his own reputation for fairness by lying about the reason? The bar won't be prosecuting the prevaricating employer for moral turpitude, yet the bar disciplined this attorney for efforts to avoid suffering prejudice. Until the bar charges discipline violations against employer attorneys when they lie to their employees, it should keep hands off employee attorneys who return the favor.

60th Installment. California State Bar becomes bar-establishment laughing stock

The California State Bar became laughing stock of the State Bar Establishment when the attorney general charged clerk Sharon Elyce Pearl with embezzling $675,000. She had persisted for eight years before the California State Bar noticed. (See http://tinyurl.com/ceydkh)

A Legal Ethics Forum blogger posted:

Sad Irony: State Bar victimized by (alleged) staff embezzler: We've all heard countless times about a solo practitioner facing disciplinary consequences because the lawyer's admin embezzled funds. (http://tinyurl.com/cz9rde)

The State Bar Establishment's embarrassment isn't misplaced. The California State Bar, which terms misappropriation by staff a supervising-attorney's willful act—casually adding charges of moral turpitude when any evidence of failure to supervise can be found—proved during an eight-year period that its moralistic stance is a pose. Although the clerk didn't embezzle clients' funds, the ethical culpability is the same because the State Bar held the money as fiduciary of the people and government of California. "All property of the State Bar is hereby declared to be held for essential public and governmental purposes in the judicial branch of the government..." (Bus. & Prof. Code, § 6008.) The Office of the Chief Trial Counsel, the prosecutorial entity, bears blame because that Office is charged with internal-oversight duties by the same law authorizing the State Bar's prosecution of disciplinary complaints. (Bus. & Prof. Code, § 6044.)

If the board of governors, which runs the State Bar, can't supervise ordinary commercial operations, how can it supervise the Office of the Chief Trial Counsel? The board of governors was designed to be ineffectual: consecutive (three-year) terms are prohibited, only annual meetings are mandated, and six members must not be lawyers. The Legislature disempowered the board of governors intending to empower the California Supreme Court, the State Bar's other supervisor, but since the Supreme Court has shown that its objectivity departs when the court hears allegations against its State Bar administrative arm, the feebleness of the board of governors unfetters the Chief Trial Counsel. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4.) Even the sycophantic State Bar Defense Establishment complains about the abrupt change in punitiveness and moralism when a new Chief Trial Counsel takes over.

This comedy isn't one of the gravest harms wreaked by the lawless State Bar, but its reckless failure to supervise public appropriations proves its ethical hypocrisy.

59th Installment. Attorney suspension for disrespect of court by proxy

A federal court issued a one-year suspension to a Louisiana attorney who disrespected a magistrate's law clerk. The attorney snapped at the annoying clerk, magistrate's delegate for a post-hearing telephone inquiry about his absence. The clerk had baited him with carping rhetorical questions and condescending repetition of his name, irritating the tired attorney. Here's a taste of his curtness according to the appellate opinion, a quick 10-page read at http://tinyurl.com/cujt29:

Ms. Blancke told Mr. Moity that there was no reason to get upset, that this was a professional phone call to assess why he had not returned the court’s phone calls and why he’d failed to appear at a court-ordered conference for the purpose of the court’s assessment of sanctions. At some point, Mr. Moity cut Ms. Blancke off in mid-sentence, yelling “Stop saying ‘Mr. Moity.’ You’ve said my name about 5 times, I know my name!”

The 5th Circuit’s denial of Moity’s appeal concluded:

Moity further argues that disbarment was an inappropriately severe punishment for his “curt conversation,” as he calls it. The conversation reported by the magistrate judge’s law clerk displayed severe disrespect to the court by the anger and harsh tone shown to a representative of the magistrate judge. In re Moity, No. 08-30826 (5th Cir. April 7, 2009) (Smith, Stewart and Southwick) (per curiam; unpublished).

Other alleged ethics infractions aggravated the offenses charged against R. Michael Moity Jr. The 5th Circuit held he testified dishonestly at the contempt hearing, but the facts don't clearly and convincingly prove Moity intended deceit. Moity’s brief accused the District Court of misconduct by discussing the case ex parte with another judge who had held Moity in contempt, accusations for which the District Court charged him with impugning two judges' integrity. Even the 5th Circuit found this charge unswallowable yet neither affirmed nor reversed it.

Abuse of disciplinary authority so gross it disturbs even the State Bar Establishment (see, for example, http://tinyurl.com/cvrbaa) can reveal State Bar oppression's intensifiers. The Western District of Louisiana disciplines attorneys using unique procedures letting any judge initiate and decide attorney discipline. Instituting practices magnifying complaining-judges' influence performs an experiment relevant to other jurisdictions, where judges' complaints start many disciplinary proceedings. The California State Bar, by rule, must investigate a judge's complaint, and the State Bar, by habit, defers to the complaining judge on the ultimate question, even if the complaint apparently arose out of a personality clash or a zealous attorney's warranted resistance. The Richard I. Fine case, notably, involves complaints by judicial officers, such as Judge Yaffe and Commissioner Mitchell, both reputed vindictive and unable to admit error. The State Bar’s readiness to prosecute on a judge’s complaint expresses not only its opportunism and authoritarianism but also a strain of its core pathology: finding ethical culpability for impropriety’s appearance, as visited by a judge accusing an attorney of misconduct.

The 5th Circuit should publish a legal outcome so novel. The courts — wanting to render agreeable decisions without being held to principles — undemocratically decline to publish weak opinions that would make new law. The opinion dodges whether alleging judicial misconduct constitutes a disciplinable offense: subtracting one third of the charges should reduce the discipline's severity. The 5th Circuit, affirming the entire aggravation without deciding part of its justification, didn't resolve the presented controversy.