by Richard W. Millar, Jr.

The phrase “the devil is in the details” is common and oft used by lawyers. It means that while conceptually a matter might be just fine, it may come unglued when the details are attempted to be hashed out.

This time I am going to depart from my usual self-imposed stricture of not reporting on California matters, because (1) I really cannot help myself, and (2) the Devil himself (or herself, who knows these days) is really in the details.

It seems the State Bar served a lawyer with a draft Notice of Disciplinary Charge, which apparently is precursor to disciplinary prosecution. Any confidentiality of such a draft disappeared when the lawyer, Benjamin Pavone, filed an action in the United States District Court to enjoin the State Bar from charging him and attached the draft notice as an exhibit to his complaint.

The essence of his complaint is that the proposed charges “violate [his] First Amendment, due process, and other constitutional advocacy rights.”

The essence of the draft State Bar notice, on the other hand, is, and I am obviously paraphrasing, lawyers are not supposed to bad-mouth judges. It is predicated on Business & Professions Code section 6068(b), which requires an attorney “[t]o maintain the respect due to the courts of justice and judicial officers.”

So, it is a classic matchup of “I can say anything I want” versus “No, you can’t.”

All counts arise from the referral to the State Bar by our district of the Court of Appeal in the partially published opinion in Martinez v. O’Hara.

Count One of the State Bar draft proposes to charge a violation of section 6068(b) and gender bias for an appeal from a female judicial officer which said:

Plaintiff . . . hereby appeals from the lower court’s disgraceful order. . . . The ruling’s succubustic . . . spseudohermaphroditic[sic] misconduct, prompt one to entertain reverse peristalsis unto its four corners.

This immediately violates Millar’s corollary #47, which says that if the reader has to look up about every third word in a sentence, it is probably not going to be persuasive.

Succubustic does not, as I first suspected, refer to some type of cloud formation, but, rather to a demon in female form who has intercourse with men in their sleep. Peristalsis is a contraction and relaxation of muscles in the digestive tract and I am still trying to figure out how that relates to a female demon and the other word appears to be misspelled and refers to a condition rather than a modifier of the word “conduct.” Whatever all that means in one sentence, it is fair to say it is probably not intended to be complimentary.

Count Two deals with the lawyer’s claim that the trial court “apparently cynically attempted to suppress notice of the judgment in order to thwart review.” (The trial court apparently signed a judgment, but notice was never sent out.)

Count Three deals with a number of statements such as the trial court “issued a mindlessly one-sided ruling. . . ,” “The lower court abandoned any interest in utilizing detached legal analysis”; and “Decisions like this announce advocacy over analysis as openly as wearing a bandana on one’s arm.”

Count Four included such tidbits as “the trial court’s ruling represents an abuse of discretion because [it] barely got any of the facts straight. But this wasn’t incompetence, it was intention.” “Here, the trial judge was motivated to rule against [plaintiff] in what must be the intoxicating effects of wielding the power to break the law, in order to reach a desired result.”

While his federal action is in its infancy and its outcome unknown, although I could certainly venture an educated prediction, if his injunctive request is denied and the State Bar’s case goes forward, he should be able to fall back on what I call the Flip Wilson defense:

The Devil made me do it.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.