I wrote earlier on this blog that the California highest court has ruled that
there is no ineffective assistance of counsel when a criminal defendant was
represented by a suspended attorney.
That one decision made the entire
attorney regulation system in California, the system that exists since 1926 and is mired in controversy since
its beginning, completely meaningless.
Yet, it continued.
And, of course, California State Bar
- regulating lawyers by lawyers, for reasons that have obviously nothing to do
with protection of consumers of legal services (since suspended attorneys could
provide as good a representation as licensed attorneys) - continued to
operate like nothing happened.
In 2012, the annual dues of the State Bar were set
by the State Legislature at $410.00 from every attorney licensed in
California - which was necessarily put into
the fees of California lawyers, as a cost of doing business.
Then there were a series of
"controversies" with California State Bar, including a disciplinary
action against its own former leader turned
whistleblower - that has eventually led to the State Legislature
refusing to allow the California State Bar to collect its membership dues at
this time.
The State of California Legislature stopped short though from enacting a law
that would demand the State Bar of California to split its regulation and its
professional advocacy functions
- which should be a requirement for an "arm of the government".
Nevertheless, the funding bill that
would allow the State of California to collect membership dues, did not pass
this year.
So, what did California State Bar do
when it was stripped of ability to collect member dues for purposes of attorney
regulation?
Did it stop collect membership dues
- because there was no law allowing California State Bar to do that?
No way. The California State Bar bypassed the lack of Legislative bill authorizing it to collect annual fees and applied to the California State Supreme Court for an override of the Legislature.
The California Supreme Court stepped
in and allowed the California State Bar - in the absence of the
required bill allowing to charge annual membership fees - to charge every
attorney a "regulatory assessment", without indicating an amount - so, the amount can be unlimited, to fund the
disciplinary system, whether that particular attorney is subject to
disciplinary proceedings at the time the fee is charged, or not.
So, the California Supreme Court is
now defying the Legislature in order to allow its own "administrative
arm", the California State Bar, to do exactly what the Legislature did not
allow it to do - to collect membership dues, albeit in a somewhat reduced amount.
That is the same California Supreme
Court, remember, that claimed that representation by a non-attorney (an
attorney whose license was suspended for non-payment of those same membership
dues) is effective representation - even though it is also unauthorized
practice of law.
Let's recall that regulation of
attorneys - by attorneys and judges - must be slam-dunk and free of any
conceptual problems. Because judges and attorneys are legal experts,
right? That was the underlying reasoning for allowing regulation of attorneys
by attorneys and judges, and not by lay members of the public, right?
1.
makes prosecutors of attorney
disciplinary proceedings its own "arm", creating an unconstitutional accuser-adjudicator
problem;
2.
legislates (illegally) for funding
for disciplinary proceedings from attorney-members of the State Bar;
and
3.
makes attorney disciplinary
proceedings meaningless because representation by a suspended attorney, in the
opinion of that same court, is as good and effective as representation by a
licensed attorney - so WHY LICENSE ATTORNEYS THEN?
And, you know how the State Supreme
Court of the State of California got out of the quagmire that it is overruling
the State Legislature and instead legislates on the issue of funding of
California State Bar?
By disingenuously claiming that
"the court has no view on arguments it
received urging it use its authority to fund the agency’s non-disciplinary
functions, and that the court will not stop the bar from
seeking donations to fund those activities".
That's it - when
every attorney licensed to practice in the State of California receives a
demand for a "charitable donation" to fund a government agency's
investigative and prosecutorial activities, that is called
"voluntary" and not mandatory.
Of course, if a
donation is voluntary, it cannot be of a pre-set amount from each licensed
lawyer of the State of California.
Because, if a
donation is voluntary, it may be given or not given, and, if given, it can be
given in any amount at all, or "in kind", not of a set amount of
$297.00 from every "donee".
Nevertheless, the
"donation" ruse was immediately blown by the press, where the court's pretended non-interference
with the State Bar's solicitations of charitable donations of $297 from every licensed attorney in the State
of California in order to fund the State Bar's disciplinary proceedings (or,
most likely, salary and benefits of disciplinary investigators and prosecutors)
was presented as a direct order allowing the State Bar to do what the
Legislature did not allow them to do - to CHARGE California lawyers an annual fee of $297.
Yet, at the same
time as claiming that the court will not interfere with solicitations of
"donations", the court also did two things:
In September of
2016, it issued a "letter" announcing that it
has "inherent authority" to arrange for funding of attorney
regulation if the Legislature does not provide for such funding.
And, on November
17, 2016, the California State Court issued a direct order allowing the State
Bar to collect a "special regulatory assessment" from
California attorneys, without indicating HOW MUCH IS TO BE COLLECTED. So, since the order only speaks of a "regulatory assessment", but does not provide for the amount, supposedly that gives authority to the California State Bar to set that "assessment" at any amount, at its whim.
When a court orders
financing of investigations and prosecutions of its own "arm" dealing
with such investigations and prosecutions, at the time when the State
Legislature, charged with that duty, specifically refuses to so do - because of
controversies and unethical behavior within the State Bar - that legislative
act makes the court so much an advocate for the prosecution that disciplinary
activities that the court felt it has an "inherent constitutional
authority" to fund became completely and irreversibly tainted.
I do not know about
authority of the California Supreme Court to fund disciplinary prosecutions of
attorneys.
But I know that the
U.S. Constitution is the Supreme Law of the Land, and that the California State
Constitution may not provide to California attorneys subject to discipline LESS
protection than the federal Constitution does.
And, under the
federal Constitution, when a Court acts as a legislator and an advocate, financing
activities of a disciplinary prosecutor, and when the disciplinary prosecutor
is considered an "administrative arm" of the disciplinary court, such
a situation is intolerable under federal constitutional law as an
"accuser-adjudicator" problem, invalidating all orders on
discipline of California attorneys.
Not that the
judiciary would care for doing anything unlawful. They are the law in
this country.
Correct?
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