No.

______________ _________________________________________________________________ IN THE

SUPREME COURT OF THE UNITED STATES

PATRICIA J. BARRY, Petitioner, vs. STATE BAR OF CALIFORNIA, Respondent. On Petition for a Writ of Certiorari to the California Supreme Court

PETITION FOR WRIT OF CERTIORARI

PATRICIA J. BARRY 634 S. Spring St., Ste 823 Los Angeles, Ca 90014 Tele.(213) 995-0734 Fax (213) 995-0735 [email protected] PETITIONER IN PROPRIA PERSONA

i QUESTIONS PRESENTED FOR REVIEW 1. Whether a state bar has jurisdiction to discipline federal practitioners in view of the Supremacy Clause, the rule-making authority of the federal courts, and this Court's holding in Sperry v. Florida, 373 U.S. 379 (1963) at 402 (....the State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives"). 2. Whether the pattern of gender disparate treatment, cronyism, and corruption in the California State Bar's discipline system so infected Barry's discipline that her right to due process was violated.

ii RULE 14.1(b) STATEMENT PARTIES TO THE JUDGMENT FOR WHICH REVIEW IS SOUGHT The parties to the judgment are Petitioner Patricia J. Barry, an attorney formerly licensed to practice in California, now suspended for 60 days commencing August 15, 2011 and ending October 14, 2011, and the State Bar of California which was the respondent below.

iii TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW ................................................................................ i RULE 14.1(b) STATEMENT ...................................................................................................... ii TABLE OF CONTENTS ............................................................................................................. iii TABLE OF AUTHORITIES ....................................................................................................... vi TABLE OF APPENDICES ......................................................................................................... vii RULINGS AND OPINIONS BELOW .......................................................................................... 1 STATEMENT OF JURISDICTION .............................................................................................. 2 CONSTITUTIONAL AMENDMENTS, STATUTES, AND RULES INVOLVED ......................................................................................................................................................... 2

STATEMENT OF THE CASE ..................................................................................................... 4 REASONS FOR GRANTING THE PETITION ............................................................. 22 I. THE LAW ON WHETHER STATE BARS HAVE JURISDICTION OVER FEDERAL PRACTITIONERS IS CONFUSING, CONTRADICTORY, AND REMAINS UNSETTLED. .............................................................................................................................. 22 THIS COURT SHOULD ACCEPT REVIEW BECAUSE OF THE BARS SYSTEMIC GENDER BIAS, CRONYISM, AND CORRUPTION RESULTING IN DENIAL OF DUE PROCESS TO BARRY. .............................................................................................................................. 30 A. Girardi and Lack Disciplined by the Ninth Circuit but Not by the Bar; Barry Not Disciplined by the Ninth Circuit but by the Bar. ...................................................................................................... 31 B. California Judges in an Uproar over Justice Georges Autocratic Control of Courts and Misuse of Funds. .................................................................................................................. 38

II.

iv C. D. Justice George Oversees a Dismantling of Due Process for Attorneys .................................................................................................................. 39 The Bars Support and Mollycoddling of Violent Men .................................................................................................................. 40 1. Morin the ostensible victim of Barrys advocacy ...................................................................................................... 40 2. 3. Marshall Krause, Attorney ........................................................... 41 John F. Henning III, Attorney ...................................................... 42

E.

Continuing Preference of the Bar to Prosecute on Behalf of Male Attorneys and to Disregard Barrys Complaints against Opposing Counsel. .................................................................................................................. 43 The Real Political Reason for Barrys Prosecution .................................................................................................................. 43

F.

III.

CONCLUSION .................................................................................................... 46

v TABLE OF AUTHORITIES Alexander v. West, Cases Nos. 99-55755, 00-56252, Ninth Circuit, August 08,2001. ............................................................................................................... 10 Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005) .......................... 24 Baylson v. the Disciplinary Board of the Supreme Court of Pennsylvania, 975 F.2d 102 (3rd Cir. 1992) ....................................................................................... 28, 29 Benjamin, Weill, & Mazer v. Kors (2011) 189 Cal.App.4th 126. ............................................... 35 Benninghoff v.Superior Court (State Bar) (2006) 136 Cal.App.4th 61 ..................................... 24 Birbrower, Montalbano, Condon & Frank v.Superior Court (1998) 17 Cal.4th 119 ...................................................................................................... 23 Bluestein v. California State Bar (1974) 13 Cal.3d 162 .............................................................. 23 Bryant v. Mattel Inc, U. S. District Court, Central District of California, Case No. 2:04-cv-09049-DOC -RNB ............................................................................. 35 Carter v. Marshall, 457 F.Supp. 38 (D.D.C. 1978) ....................................................................... 9 Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) ...................... 27 City of Hope National Medical Center V. Genentech, Inc. (2008) 43 Cal.4th 375, 75 Cal.Rptr.3d 333, 181 P.3d 142. ................................................................................. 35 Clark v. Marsh, 489 F.Supp. 1236 (D. D. C., 1981) ..................................................................... 9 ConnectU v. Facebook, U. S. District Court for the District of Massachusetts, Civil Action No. 1:07-cv-10593 (DPW) .......................................................................... 36 Copple v. Astrella & Rice, P.C., 442 F.Supp.2d 829 (U.S.C.D. 2006) ........................................ 32 Cowen v. Celabrese (1964) 230 Cal.App.2d 870 .................................................................. 23, 26

vi Cytodyn of New Mexico v. Barry, Case No. BC 362909., Los Angeles Superior Court ............. 33 Elwood v. Drescher, 456 F.3d 943 (9th Cir. 2006) .................................................. xxii, 19, 29, 33 Elwood v. Drescher, Appeal No. 04-56917, U. S. Court of Appeals for the Ninth Circuit, January 2, 2004 ............................................................................ 19 Elwood v. Drescher, Case No. 02-4656 , United States District Court for the Central District of California ........................................................................ 4, 5, 16 Elwood v. Morin, Case No. 01-8582 , United States District Court, Central District of California ................................................................................. 4, 14, 21 Elwood v. Morin, Case No. 02-56918, Ninth Circuit, January 2, 2004 .................................... xxii Elwood v. Morin, Case No. 02-56918, United States Court of Appeals for the Ninth Circuit, January 4, 2004 ............................................................................ 16 Elwood v. Morin, Case No. 04-34, U. S. Supreme Court, Petition for Writ of Certiorari denied on October 4, 2004 ............................................... 16 Elwood v. Morin, Case No. 04-34, U. S. Supreme Court, certiorari denied October 4, 2004. ................................................................................ xxii Elwood v. Morin, Case No. 04-55630, Ninth Circuit, July 28, 2006. ....................................... xxii Elwood v. Morin, Case No. 04-55630, U. S. Court of Appeals for the Ninth Circuit, July 28, 2006 ................................................................................ 16 Elwood v. Morin, Case Nos. 02-56077, U. S. Court of Appeals Ninth Circuit, January 4, 2004 ........................................................................................ 16 Elwood v. Superior Court of California, Los Angeles County, Case No. 04-72, U. S. Supreme Court, certiorari denied October 4, 2004 ................... xxii Elwood, et al. v. Drescher, et al., Case No. 04-56917 , United States Court of Appeals for the Ninth Circuit .......................................................................................................... 5

vii Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 (1990) ............................... 8 Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 ............................................... 27 Frazier V. Heebe, Chief Judge, United States District Court for the Eastern District of Louisiana, 482 U.S. 641 (1987) ..................................... 30 Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) ................................................................... 28, 30 Geibel v. State Bar (1938) 11 Cal.2d 412 .................................................................................... 23 Goodrich v. City of Paso Robles, et al., Case No. CV-00-7947 DT, U. S. District Court for the Central District of California ............................................... 22 Humphries v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2009) revd on issue of attorney fees awarded against County, 562 U. S. __ (2010), No. 09350. .................................................................................. 20 In re Daniel David Dydzak, Case Nos. 04-O-14383; 06-O-10960, Unpublished Opinion on Review and Order filed December 3, 2009 ............................. 24 In re Disbarment of Isserman, 345 U. S. 286 (1953) .................................................................. 28 In re Girardi, Nos. 08-80090, 03-57038, U. S. Court of Appeals for the Ninth Circuit, July 2011 ....................................................................................... 31 In re John F. Henning, III, Case No. 01-C-01747-PEM State Bar of California, filed January 8, 2004 ................................................. xxiii In re Kay, Case No. 01-O-01930, State Bar of California, August 13, 2010, .............................. 11 In re Mary Poole, Debtor, 222 F.3d 618 (9th Cir. 2000) ............................................................. 28 In re McCue (1930) 211 Cal. 57 ............................................................................................ 23, 26 In re Patricia Joan Barry, Cases Nos. 06-O-12210-RAP, 07-H-12920 RAP, State Bar of California, filed April 14, 2011. ................................................................ xxii

viii In re Primus, 436 U.S. 412 (1978) ............................................................................................... 46 In re Rose (2000) 22 Cal.4th 430; 93 Cal.Rptr.2d 298; 993 P.2d 956 ................................... 37, 39 In re Ruffalo, 390 U.S. 544 (1968) .............................................................................................. 28 In re Sawyer, 260 F.2d 189, (9th Cir. 1958) ................................................................................. 28 In re Sawyer, 360 U.S. 622 (1959) .............................................................................................. 28 In Re Silverman, 405 F.2d 410 (5th Cir. 1968) ......................................................................... 6, 28 In re: Patricia J. Barry, Case No. S187076, California Supreme Court ....................................... 1 In Re: Steven Kramer, 193 F.3d 1131 (9th Cir 1999) ................................................................... 28 In the Matter of Arthur Lawrence Abrams, 521 F.2d 109 (3d Cir. 1975) ................................. 5, 7 In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416 .............................. 23 In the Matter of Wells (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 896 .................... 24, 25, 30 Johnson v. Avery, 393 U.S. 483 (1969) ....................................................................................... 27 Johnson v. Lehman, U. S. District Court, Wash., D. C., 1980; reversed, 679 F.2d 918 (D.C. Cir. 1982) ........................................................................... 9 Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005) .................................................................... 10 Krause v. Acevedo, et al., 02-cv-05277-JSW, Northern District of California ........................... 42 Kulkarni v. Alexander, 662 F.2d 758 (D.C. Cir. 1978) .................................................................. 9 Lehman v. Nakshian, 453 U.S. 156 (1981) .................................................................................... 9 Marez v. Bassett, 595 F.3d 1068 (9th Cir. 2010 ........................................................ 10, 31, 44, 45

ix Meritor Savings Bank v. Vinson, 477 U.S. 57 (U.S. 1986) ............................................................ 8 Miranda v. Hokinson, et al.,Case No. 07-609, U. S. District Court Central District of California ........................................................................................... 44 Nakshian v. Claytor, 628 F.2d 59 (D.C. Cir. 1980) ...................................................................... 9 Nakshian v. Claytor, 481 F.Supp.159 (D.D.C. 1979) .................................................................... 9 Paul E. Lacona SE Inc. v. Humphrey, 722 F2d 435, 439 (9th Cir. 1983) ................................... 27 Porter v. District of Columbia, 502 F.Supp. 271 (D.D.C. 1980) ................................................... 9 Richardson v. Hamilton International Corp., 469 F.2d 1382 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973) ................................ 28 Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984) ....................................................................... 9 Selling v. Radford, 243 U. S. 46 (1917) ....................................................................................... 28 Sperry v. Florida, 373 U.S. 379 (1963) .................................................................................. i, 27 State Unauthorized Practice of Law Committee v. Paul Mason & Associates, Inc., 46 F.3d 469 (5th Cir. 1995) ............................................................................................... 27 Statewide Grievance Committee v. Gifford, 76 Conn.App. 454; 820 A.2d 309 (Conn. Appell. 2003) .......................................................................... 28, 30 Taste of Nature, Inc. v. Matson Navigation Co., Inc., et al., Case No.08-CV-03073-PA-SS U. S. District Court for the Central District of California .............................................. 37 The Facebook, Inc., et al v. ConnectU, Inc., et al, Case No. 08-16745, U. S. Court of Appeals for the Ninth Circuit ................................................................... 36 Theard v. United States, 354 U.S. 278 (1957) ............................................................................. 28 Trone v. Smith, 621 F.2d 994 (9th Cir.1980) ............................................................................... 28

x United States District Court for the District of New Jersey v. Abrams., 423 U.S. 1038, 96 S. Ct. 574; 46 L. Ed. 2d 413 (1975) .......................................................................... 4, 7 United States of America, v. Commonwealth of Virginia, 139 F.3d 984 (4th Cir. 1998) ............................................................................................. 27 Vinson v. Taylor, 23 Fair Empl.Prac.Cas. (BNA) 37 (D.D.C.1980) ............................................ 8 Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985) .......................................................................... 8 Winterrowd v.American Gen. Insur., 556 F3d 815 (9th Cir. 2009) ....................................... 26, 28 Woodrum v. Woodward County, Okla., 866 F.2d 1121 (9th Cir. 1989) ......................................... 5 CONSTITUTION, STATUTES, RULES: United States Constitution Article VI .......................................................................................................................... 2 First Amendment ....................................................................................................... 18, 19 Fourteenth Amendment Due Process Clause .................................................................. 15 Due Process Clause .................................................................................................... 18, 19 Fourteenth Amendment, Section 1 ........................................................................ xxii, 21 Fourteenth Amendment Equal Protection Clause ............................................................ 15 Equal Protection Clause ................................................................................................... 18 Supremacy Clause .............................................................................................................. 7 18 U.S.C..Section 2385 ................................................................................................................ 28 28 U.S.C. Section 1257(a) ............................................................................................................. 2

xi 28 U.S.C. Section 1654 ............................................................................................................. 2, 6 28 U. S. C. Section 2071(a) .................................................................................................... 3, 29 28 U.S. C. Section 2072(a) ..................................................................................................... 3, 29 42 U.S.C. Section 1977a ............................................................................................................. 9

42 U.S.C. Section 1983 ...................................................................................................... 6, 14, 16 42 U.S.C. Section 5119, et seq. .................................................................................................... 17 Age Discrimination in Employment Act ....................................................................................... 9 1991 Civil Rights Act .................................................................................................................... 9 Smith Act ........................................................................................................................ 28, 46, 47 Title VII of 1964 Civil Rights Act as amended ........................................................................... 25 29 C.F.R. Section 1601.7 ............................................................................................................ 25 29 C.F.R. Section 1614.109(e) .................................................................................................... 26 29 C.F.R. Section 1614.605 ........................................................................................................ 25 37 C.F.R. Section1.345 ................................................................................................................. 7 Supreme Court Rule 10(a), (b), and (c) ...................................................................................... 22 Ninth Circuit Appellate Rules Rule 46 Rule 46-1 Rule 46-2 .......................................................................................................................... 3

xii Rule 83-1 , U. S. District Court Central District of California ............................................... xxiii California Business & Professional Code Section 6049.1(b)(1)-(3) .................................................................................................. 32 Section 6049.1 .......................................................................................................... xxiii, 3 Section 6068(d) ............................................................................................................... 32 Section 6125 .................................................................................................................... 24 Section 6049.1 .................................................................................................................... 3 California Child Abuse Reporting Act ....................................................................................... 16 California Child Support Enforcement Act .......................................................................... 16, 20 California Civil Code Section 49(a) .................................................................................................................... 15 California Penal Code Section 11172(a) .............................................................................................................. 15 Section 11170 .................................................................................................................. 17 California State Bar Act .............................................................................................................. 29 California Rule Professional Conduct Section (Rule) 3-200 (B) .................................................................................................... 6 Section (Rule) 5-200 ....................................................................................................... 32

xiii MISCELLANEOUS: "Politically Motivated Bar Discipline" Moliterno, James E.,(2005). http:// scholarship. law. wm.edu /facpubs/928, 83 Washington University Law Quarterly 725 ........................... 11 Christine R. Davis, Approaching Reform: the Future of Multijurisdictional Practice In Todays Legal Profession 29 Florida State University Law Review 1339. ............................................ 30 Comisky & Patterson, The Case for a Federally Created National Bar by Rule or by Legislation, 55 Temp. L. Q. 945, 960-964 (1982) ............................................................................... 30 Daily Journal Editorial dated 3/15/2011, entitled Who Really Runs the Judicial Branch, Maryanne G. Gilliard (a judge at the Sacramento County Superior Court and director of the Alliance of California Judges) ............................................... 38 Fordham Law Review, Volume 55 | Issue 6 Article 5, 1-1-1987: Ira M. Saxe, Constructive Discharge Under the ADEA: An Argument for the Intent Standard .................................................................................... 9 Ninth Circuit report, Chp. XI, The Role of Gender ................................................................. 12 Simonelli, State Regulation of a Federal License to Practice Law, 56 N. Y. State Bar J. 15 (May 1984) ............................................................................... 30 Los Angeles Lawyers Settle on Music By Kristina Horton Flaherty, Staff Writer, California Bar Journal, November 2010 .......................................................................... 37

xiv TABLE OF APPENDICES Appendix A - OSC re: discipline issued to Patricia J. Barry by Ninth Circuit August 29, 2011, Case No ............................................................................................................... 1a Appendix B - Order filed June 29, 2011, California Supreme Court denying Petition for Writ of Review, In re Patricia J. Barry on Discipline, Case No.S 187086 Appendix C - Order Denying Barrys Motion to Dismiss filed March 16, 2011, Id. Appendix D - Stipulation for discipline, In re Patricia Joan Barry, Cases Nos. 06-O-12210RAP, 07-H-12920 RAP, State Bar of California, filed April 14, 2011. Appendix E - Elwood v. Morin, Case No. 04-55630, Ninth Circuit, July 28, 2006. Appendix F - Elwood v. Drescher, 456 F.3d 943 (9th Cir. 2006) Appendix G - Elwood v. Morin, Case No. 02-56077, Ninth Circuit, January 2, 2004. Appendix H - Elwood v. Morin, Case No. 02-56918, Ninth Circuit, January 2, 2004 Appendix I - Elwood v. Drescher, Case No. 02-56917, Ninth Circuit, January 2, 2004 Appendix J - Elwood v. Morin, Case No. 04-34, U. S. Supreme Court, certiorari denied October 4, 2004. Appendix K - Elwood v. Superior Court of California, Los Angeles County, Case No. 04-72, U. S. Supreme Court, certiorari denied October 4, 2004. Appendix L - United States Constitution, Article VI Appendix M - Fourteenth Amendment, Section 1 of United States Constitution Appendix N - 28 U.S.C. Sec.1654 Appendix O - 28 U.S.C. Sec.2701(a) Appendix P - 28 U.S.C. Sec.2702(a)

xv Appendix Q - U. S. District Court Central District of California - Rule 83-1 Appendix R - Ninth Circuit Rule 46 Appendix S - California Business & Professional Code Sec.6049.1 Appendix T - Stipulation for Discipline, In re John F. Henning, III, Case No. 01-C-01747-PEM State Bar of California, filed January 8, 2004

1 Petitioner Patricia Barry (Barry) respectfully submits that a writ of certiorari should issue to review the Judgment of the California Supreme Court in this case. RULINGS AND OPINIONS BELOW The OSC re: discipline issued by the Ninth Circuit against Barry, Case No. 11-80211 on August 29, 2011, is unreported and found at Appendix A, 1a. The order denying Petitioners Petition for Writ of Review, In re: Patricia J. Barry, Case No. S187076 on June 29, 2011, is unreported and is found in Appendix B at 3a. The order denying Petitioners Motion to Dismiss for lack of Jurisdiction on March 16, 2011, Id., is unreported and found at Appendix C at 4a. The stipulation for discipline of Barry, Cases Nos. filed in State Bar of California, on April 14, 2010 is unreported and found at Appendix D at ___a. The Opinion of the U. S. Court of Appeals for the Ninth Circuit in Elwood v. Morin, et al., Case No. 04-55630 filed July 28, 2006 is unreported and found at Appendix E at ___a. The Opinion of the U. S. Court of Appeals for the Ninth Circuit in Elwood v. Drescher, et al., Case No. 04-55635, filed July 28, 2006, is reported at 456 F.3d 943 (9th Cir. 2006) and found at Appendix F at ___a. The opinion of the U. S. Court of Appeals for the Ninth Circuit in Elwood v. Morin, et al., Case No. 02-56077 filed on January 2, 2004, is unreported and found at Appendix G at ___a. The Opinion of the U. S. Court of Appeals for the Ninth Circuit in Elwood v. Morin, et al., Case No. 04-56918 filed on January 2, 2004, is unreported and found at Appendix H at ___a. The Opinion of the U. S. Court of Appeals for the Ninth Circuit in Elwood v. Drescher,

2 et al., Case No. 04-56917 filed on January 2, 2004, is unreported and found at Appendix I at ___a. The order of this Court denying writ of certiorari, File No. 04-34 on October 4, 2004, in Elwood v. Morin, Case Nos. 56077 and 56918, U. S. Court of Appeals for the Ninth Circuit, Case No. 04-34, is found at Appendix J at ___a. The order of this Court denying writ of certiorari on October 4, 2004, in Elwood v. Superior Court of California, Los Angeles County, Case No B169966, California Supreme Court, Case No. 04-72, is found at Appendix K at ___a. STATEMENT OF JURISDICTION The order of the California Supreme Court denying Motion to Dismiss was filed on March 16, 2011, and the order denying Barrys Petition for Writ of Review was filed on June 29, 2011. On July 28, 2011, the Review Department of the State Bar Court extended the effective date of the 60-day suspension to August 15, 2011. This petition is filed within ninety days of the Supreme Courts final order affirming the disciplinary order of the California State Bar (Bar). This Court has jurisdiction pursuant to 28 U.S.C. Section 1257(a). Barry first invoked federal jurisdiction in Petition for Review filed on December 23, 2011, and again in her Motion to Dismiss filed on January 25, 2011. CONSTITUTIONAL AMENDMENTS, STATUTES, AND RULES INVOLVED United States Constitution, Article VI is found at Appendix L, a. Section 1, Fourteenth Amendment of the United States Constitution is found at Appendix M, 28 U.S.C. Sec.1654 is found at Appendix N

3 28 U. S. C. sec.2071 (a) is found at Appendix O 28 U.S. C. Sec.2072(a) is found at Appendix P U. S. District Court Central District of California L.R. 83-1 related to discipline of attorneys Q Ninth Circuit L.R. 46, 46-1, and 46-2 related to discipline of attorneys are found at Appendix R California Bus. & Prof. Code Section 6049.1 is found at Appendix S

4 STATEMENT OF THE CASE It has always seemed clear to me that the federal courts have plenary power over the admission, disbarment, or discipline of attorneys who practice before them. [Citation.] The federal courts are not bound by the standards of professional conduct prescribed or enforced by the States any more than States are bound by federal action....A federal court must apply state law in diversity cases, but there is not the slightest reason to do so in judging the conduct of members of its own bar. Justice Burgers dissent, joined by Justice Powell, United States District Court for the District of New Jersey v. Abrams., Case No. 75-487, 423 U.S. 1038; 1038-1039, 96 S. Ct. 574; 46 L. Ed. 2d 413; 1975 U.S. LEXIS 3802 (December 15, 1975) Six years after Barry filed two federal lawsuits in the Central District of California on behalf of Darla Elwood, a battered woman and mother, her parents, Terri and Edward Elwood, her friend, Amy Meinke, and her son, Anthony Delaplane, Elwood v. Morin, Case No. 01-8582 in October 2001 and Elwood v. Drescher, Case No. 02-4656 in June 2002, four years after this Court denied two petitions for writ of certiorari, one, related to the dismissal of the civil conspiracy claim in one of the federal lawsuits, and the other, related to the denial of disqualification of a state court family law commissioner, and two years after all appeals in the federal lawsuits had been resolved, the Bar filed Notice of Disciplinary Charges in March, 2008, based in part that Barry had filed frivolous causes of action in the two federal lawsuits. 1 The

Bar has substituted its judgment for that of the ten federal judges who had all scrutinized Barrys complaints. Not one federal judge threatened disciplinary action against Barry, much less

The Bar is also prosecuting Barry for two failures to pass the MPRE (national attorney/judge ethics exam) in connection with a private reproval she agreed to on June 22, 2005, in settlement of a Bar complaint Judge Verna Adams, Marin Superior Court, had made against her based on contempt convictions Adams had imposed on Barry in July 2000. Barry had met all the other conditions of the private reproval, including taking the Bars ethics class and passing its ethics exam. Barry is not challenging this bar prosecution in this petition. However, Barry argues, infra, that the prosecution is further evidence of gender bias and cronyism in Bar discipline, given the nature of the underlying lawsuit, the individual selected to prosecute Barry, and the suspicious chronology of the Bar prosecution itself.

5 referred her to either of the respective disciplinary committees of the U. S. District Court or of the Ninth Circuit. Nor did any of the ten federal judges refer her to the Bar. In Elwood v. Drescher, Case No. 02-4656, the District Court (Honorable Lourdes Baird) issued an OSC re: sanctions against Barry but withdrew it stating that she was mindful of the potential chilling effects plaintiffs who argue in good faith for the modification or extension of rights and remedies under Section 1983 The Court cited Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1127-28 in which the Ninth Circuit reversed an order of Rule 11 sanctions against Barry. It was only after remand of the first two appeals affirming the two judgments of dismissal, that Judge Baird imposed attorney fees on the plaintiffs and ruled that four of the seven causes of action were frivolous. Nonetheless, the withdrawal of the OSC should not be dismissed out of hand since The district court is entitled to regulate its bar, inter alia, in order to assure proper advocacy to assist it in the conduct of its judicial functions. In the Matter of Arthur Lawrence Abrams, 521 F.2d 1094, 1109 (3d Cir. 1975). Entitled to regulate its bar, either by sanctions or discipline or both, in Barrys case, the District Court declined to do either. While the appeal from the judgment of dismissal was pending, a panel of three judges (Rawlinson, Leavy, and Hawkins) denied all three of the Appellees Motions for Summary Affirmance in Elwood, et al. v. Drescher, et al., Case No. 04-56917 finding that Aples' mtns for summary disposition of this appeal are denied because the arguments raised in aplts' opn brief are not so insubstantial as not to require further argument. [All arguments based on the causes of action in the complaint.] This case is ready for calendaring.

6 Barry contends that this was the law of the case, with respect to the Drescher causes of action. If Barry is correct, then the findings of frivolousness by a later panel on two of the causes of action without a change in the law or the facts become problematic. In this Petition, Barry argues other factors infra tending to prove that the causes of action were not frivolous. However, for the Bar to step in and judge her pleadings usurps 28 U.S.C. Sec.1654 which states: In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. The federal rules of pleading and attendant case law control Barrys federal pleadings, not Bar rules. The stipulation Barry signed out of economic duress invades the province of federal law: By filing and maintaining Elwood vs. Morin and Elwood vs. Drescher,. Respondent accepted and continued employment that she knew or should have known had the objective of presenting a claim or defense that is not warranted under existing law in wilful violation of California Business and Professions Code, section 3-200 (B) Appendix D, a. Barry was entitled to ...argue in good faith for the modification or extension of rights and remedies under Section 1983 as Judge Baird pointed out when she withdrew the OSC re: sanctions. Nor does the jurisdiction issue affect only plaintiffs civil rights attorneys. It impacts on all federal practitioners throughout the United States, attorneys and non attorneys alike. A specialist in patents and trademarks or in admiralty and maritime law has a national federal practice. See, e.g., In Re Silverman, 405 F.2d 410, 414 (5th Cir. 1968): (In most areas of this Country such attorneys (patent trademark) are few and far between. No public interest is to be

7 served [by denying patent attorneys to list themselves as such in directories],...) It was the Texas Bar who determined that patent attorney Silverman could not advertise his patent specialty wares if he also handled state cases, despite patent office regulations to the contrary. (37 C.F.R. Sec.1.345 as quoted at Id., 413.) The Fifth Circuit sensibly reversed the Bar, invoking the Supremacy Clause. Id., at 413. Besides, how many bar judges and prosecutors specialize in these areas of law? 2 This is just one example of a Bar encroaching on federal territory. As Justice Burger pointed out in the Abrams case, A federal court must apply state law in diversity cases, but there is not the slightest reason to do so in judging the conduct of members of its own bar. The New Jersey Bar had imposed on Attorney Abrams a one-year suspension. The District Court had disbarred Abrams from practicing in the federal court, and the Third Circuit reversed. In the Matter of Arthur Lawrence Abrams, 521 F.2d 1094, 1098, 1104 (3d Cir. 1975). Nonetheless, Justice Burgers observation should apply with as much equal force to an attorney practicing in federal court where federal judges impose no discipline on her but

Barry ran into precisely this problem. Her prosecutor, Brandon Tady, although polite, had no federal experience other than three cases, all diversity based on state claims, he litigated some 20 years ago in the Central District of California. Tadys speciality was insurance bad faith defense in state court. Barrys research in PACER in the four district courts of California and the Ninth Circuit reveals that three of the seven Bar judges had never appeared as attorneys in these federal courts (including Judge Platel to whom Barrys case was assigned. Again, it must be emphasized that he was always polite and welcoming towards Barry). Two had appeared in one lawsuit each in a district court; one had litigated four cases in the Central District only one of which was a federal claim; and only one had significant legal experience in the federal courts, but most of the cases were based on state claims. It was a hard pill for Barry to swallow knowing that she was the only one in the Bar courtroom with federal litigation expertise being judged on her federal pleadings by those who had little to none with full power to deprive her of her constitutional right to practice law and to earn a living, and to stigmatize and humiliate her publicly.

8 a state bar does because ...There is not the slightest reason to [apply state law] in judging the conduct of members of [the federal courts] own bar. The Bars assumption of jurisdiction over Barrys federal pleadings has resulted in a circularity forcing Barry to defend herself in the Ninth Circuit on charges the Ninth Circuit never issued against her in the first place either five years ago (last set of appeals decided) or seven years ago (first set of appeals decided). This Court also must review her conduct which is now nine years old. Yet, when the Ninth Circuit did discipline two wealthy white male attorneys, Thomas Girardi (law firm is Girardi & Keese) and Walter Lack, (law firm is Engstrom, Lipscomb, & Lack) who have close ties to the Bar through cronyism and money, the Bar refused to apply reciprocal discipline which is compulsory. This Bar prosecution also paints Barry as a willy-nilly attorney who does not do her research and recklessly drafts complaints. (So does the Ninth Circuit.) Barry single-handedly conducted the 11-day bench trial in Vinson v. Taylor, 23 Fair Empl.Prac.Cas. (BNA) 37 (D.D.C.1980) which she lost. She then argued and won both Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985) sub nomine Meritor Savings Bank v. Vinson, 477 U.S. 57 (U.S. 1986) (the latter win was a collective effort of numerous attorneys with Catharine MacKinnon on the brief. The ruling was unanimous with Justice Rehnquist writing the opinion for this Court). Besides Meritor which established that environmental sexual harassment, like quid pro quo harassment, is sexual discrimination, Barry extended the cause of action in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 (1990). The California Court held that even if the woman was not the direct victim of sexual harassment but observed it on an

9 ongoing basis in a pervasive environment, she could state a claim for harassment. Barry also argued in this Court for the respondent, a woman, in Lehman v. Nakshian, 453 U.S. 156 (1981), although she lost 5-4 on whether federal employees were entitled to jury trial under the Age Discrimination in Employment Act. See also Nakshian v. Claytor, 628 F.2d 59 (D.C. Cir. 1980), argued by another law firm). See also Nakshian v. Claytor, 481 F.Supp.159 (D.D.C. 1979). (Argued the motion on right of jury trial and prevailed.) Another important case for workers, especially women workers, which Barry won in both the District Court and Court of Appeals is Clark v. Marsh, 489 F.Supp. 1236, (D. D. C., 1981) aff'd, 665 F.2d 1168 (D.C. Cir. 1985). The Ninth Circuit cited Clark, supra, with approval which relied on it for its decision in favor of the employee in Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984). Clark, supra, was cited, for example, twelve times in Fordham Law Review, Volume 55 | Issue 6 Article 5, 1-1-1987: Ira M. Saxe, Constructive Discharge Under the ADEA: An Argument for the Intent Standard. Barry is the only attorney ever to win a jury verdict for a federal employee under the Age Discrimination in Employment Act. Johnson v. Lehman, U. S. District Court, Wash., D. C., 1980; reversed, 679 F.2d 918 (D.C. Cir. 1982) based on the ruling in Nakshian, supra.3 Other reported cases Barry litigated in Washington, D. C. include Porter v. District of Columbia, 502 F.Supp. 271 (D.D.C. 1980); Kulkarni v. Alexander, 662 F.2d 758 (D.C. Cir. 1978); Carter v. Marshall, 457 F.Supp. 38 (D.D.C. 1978). In the Ninth Circuit, Barry reversed two judgments of dismissal in which the plaintiff

This glitch in the law was never corrected when Congress passed the 1991 Civil Rights Act. See 42 U.S.C. Sec.1977a.

10 was a black woman chaplain on issues of hostile work environment and termination, Alexander v. West, Cases Nos. 99-55755, 00-56252, August 08,2001.4 See also Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005) reversed on issue of collateral estoppel in favor of the plaintiffs and against the director James Cameron, among other defendants. Marez v. Bassett, 595 F.3d 1068 (9th Cir. 2010) which Barry just recently argued and won involves a First Amendment claim based on retaliation for reporting a corrupt contract to the City Council. As argued, infra, Barry contends that winning the appeal was a major factor in Bar Prosecutor Brandon Tady pressuring her to sign the stipulation for discipline although he had conceded that she had a good chance of prevailing on the Elwood lawsuits issue. Barry has appeared in U. S. District Court for the District of Columbia, District of Massachusetts in Boston, Eastern District of Virginia in Richmond and Alexandria, Western District of Virginia in Roanoke, Central District of Illinois, District of Utah in Salt Lake City, and in Central, Northern (by telephone), Eastern, and Southern Districts of California. She has argued cases in the District of Columbia, Seventh (only filed brief, client passed away), Ninth, and Tenth Circuits, and in the U. S. Court of Claims. As already indicated, she has appeared twice in the U. S. Supreme Court. At the same time the Bar was prosecuting Barry based on lawsuits involving a battered woman who lost custody to abusive fathers, the Bar was also prosecuting Phil Kay, a titan of the law who had won the largest sexual harassment verdicts in the country based on a trumped-up version of his conduct while litigating those cases. Because Kay refused to answer questions

The District Court judge whose judgments of dismissal were reversed in the Alexander appeals was Judge Lourdes Baird, the judge who later ruled that Barry had filed frivolous causes of action and awarded the attorney fees in the Elwood lawsuits.

11 which violated the attorney-client privilege since none of his clients had complained against him or waived the privilege, rather than refer the matter to Superior Court on a contempt citation, the Bar Judge defaulted him and suspended him for three years. In re Kay, Case No. 01-O-01930, August 13, 2010, State Bar of California, http://members.calbar.ca.gov/fal/Member/Detail/99830 Because of the size of the punitive damages award, 30 million dollars, the case went up and down the courts. Not one judge ruled that Kay engaged in misconduct. Not one judge threatened, let alone, issued a contempt citation. This cannot possibly be coincidence, that the Bar prosecuted the attorney who argued the first sexual harassment case in the U. S. Supreme Court and the attorney who won the biggest sexual harassment verdicts in the history of such litigation both at the same time. It cannot be coincidence that the spate of recent prosecutions which appear to be politically motivated are of seasoned, experienced, older attorneys, like Barry who is 68 years old and Kay who is around 60 years old. It also cannot be mere coincidence that these prosecutions were of attorneys who

represented women, including Barry, Kay, Jeffrey Lustman (woman denied constitutional right to jury trial in conservatorship proceeding), Don Loftus (woman suffered irreversible brain damage because of hospital negligence), Ron Gottschalk (women denied property without due process by probate judges), and Dan Dyzdad (woman seeking damages from a corporate client of a former bar president). In a time of upheaval, such as this country is experiencing since 9/11 especially with the downturn in the economy, as pointed out in a law journal article entitled "Politically Motivated Bar Discipline" Moliterno, James E.,(2005). Faculty Publications. Paper 928, http:// scholarship. law. wm.edu /facpubs/928, 83 Washington University Law Quarterly 725

12 Bar discipline and admission denial have a century-long history of misuse in times of national crisis and upheaval.,,, Political misuse of bar machinery is characterized by its setting in the midst of turmoil, by its target, and by its lack of merit. The current instance of politically motivated bar discipline bears the marks of its historical antecedents. Id., at25 Women, workers, people of color, especially Latino immigrants and now, Muslims, are the first to suffer set backs and attacks during such periods of unrest. Not so surprising, then, the above-cited article focused on the Bar prosecution of a woman attorney, Jesselyn Radack, former ethics attorney in U. S. Dept of Justice Professional Responsibility Advisory Office. There are also not enough women in positions of authority at the Bar. During Barrys prosecution, the last time she checked, there were fifteen men and only eight women on the Board of Governors. Not one public member was a domestic violence survivor or an advocate for womens rights, especially in the area of child custody, domestic violence, sexual harassment, and rape. Gender bias affects all women, no matter their race or station in life. Justice Sotomayor has publicly complained about how she was questioned about her dating habits when under consideration for appointment as a judge. .... I was convinced they were not asking those questions of the male applicants, Sotomayor said, alluding to questions about her dating habits.....I wondered if they ever asked those questions of the male candidates. But the society has a double standard. .... The Atlantic, Sonia Sotomayor on Dating, Deciding, and Being the Newest Supreme Court Justice, by James Warren theatlantic.com/politics/print/2011/03/sonia-sotomayor Barry contends that the parents respective genders played a role with the fathers prevailing and the mother not, with Elwoods civil rights conspiracy eventually declared frivolous. In the Ninth Circuit report, Chp. XI, The Role of Gender at id., p.949-950, the

13 authors state: ....A consistent finding is that gender remains relevant in different ways, at different times, but frequently playing a role. While occasionally men may bear the brunt of the effects of gender, women suffer injuries from gender bias more frequently. Although the judiciary aspires to a system of justice in which the gender of participants is of no import, the results of this research document that in the current world, gender counts. Gender can have an effect on one as litigant, witness, lawyer, employee, or judge, both with regard to process and with regard to substantive outcome. Gender plays a role in the appointment process, in interactions in and outside the courtroom, in the work one does, and in federal adjudication. As a participant in the Ninth Circuit, ones gender affects how one views the judicial system, and often, how one is viewed by it. While the Task Force found that many women attorneys found that they were not discriminated against in federal courts, nonetheless, Yet the data also suggest that gender adds an extra dimension to courtroom and law firm interactions, a dimension that is often discomforting and sometimes destructive to female counsel and perhaps to their clients. Id., at p.810. Lacking a female influence at the Bar resulted in the anomaly of the Bar spending the members dues on championing a man, Joseph Morin (Morin), with a proven history of domestic and racial violence, and punishing Barry, the female solo attorney, because she sued him precisely because he is violent and should never have custody of children. In the Bars view, it was unethical for Barry to sue Morin; it was ethical for the Bar to champion him as Barrys victim. It also took a woman and a brilliant legal scholar Catharine MacKinnon, to develop the legal concept of sexual harassment: ....The resort to polemical or self-consciously literary forms of expression also reflects the idea that the very conceptual framework of legal scholarship makes it impossible to say certain kinds of things....To take a well-known example, the concept of harassment was developed (by MacKinnon14) to identify a form of abuse of power which fell between a number of existing social and legal concepts such as rape, assault and sex discrimination. Id., 5. [fn 14: Sexual Harassment of Working Women (1979)] which

14 Barry used as her bible in the Vinson pre-trial, trial, and appellate proceedings. All of these issues are important to women: security against sexual violence and domination, womans control over her body, economic position of women, acquisition of identity as a woman, womens speech, and womens status of women as legal and political subjects. Without women in positions of authority mediating the discourse in law and elsewhere, women cannot and will not advance. For womens voices to be heard, they must be allowed to speak. They are clearly not being heard at the Bar as evidenced by the prosecution of Barry and Kay. (1) Elwood v. Morin, No 01-8582. Barry filed the lawsuit based on 42 U.S.C. Sec.1983 in October 2001, in the Central District of California on behalf of Darla Elwood, (Elwood) a battered woman and mother who lost three of her children in juvenile court to the two allegedly-abusive fathers, Rodney Delaplane (R. Delaplane) and(Morin). Barry amended the complaint in February, 2002. D. Elwood was the defacto physical and legal custodian of five children, the two fathers showing little or no interest in their children.[One child, a son died before the juvenile court proceeding commenced.] Both fathers were physically and emotional abusive to both D. Elwood and their children. Both had failed to pay child support as a result of which D. Elwood was forced on welfare. The County obtained judgments against both fathers for reimbursement to the County for the welfare payments. When D. Elwood began dating another man, Delaplane and Morin swore revenge, with Morin saying he would use Dept Children and Family Services to take D. Elwood's children from her so that she would come crawling back to him. A false charge of molest against Anthony, Elwoods oldest child, by Julie Delaplane, the

15 ex-wife of James Delaplane, the man D. Elwood was dating caused DCFS to become involved. However, the Sheriff closed their investigation. The D. A. refused to prosecute. DCFS did not take the children, choosing to conduct an investigation headed up by Social Worker De Muro. D. Elwood, at the suggestion of her father, asked De Muro if she could tape record her so that she could have clear instructions concerning Anthony. D. Elwood also commented that her then 3-1/2 year old daughter Stephanie had told D. Elwood that De Muro had patted her butt to demonstrate how innocent acts could be construed as sexual molestation. De Muro became angry with D. Elwood, left her home, and entered into two secret agreements with the fathers, transferring custody of the children to them without a court order, a warrant, or a juvenile court petition being filed. Despite the dismissal of the charge against Anthony which was the reason for invoking juvenile court jurisdiction, Judge Skeba, the juvenile court referee, refused to return custody to Elwood. D. Elwood sued the two fathers, Morin and Delaplane, Morins therapist, Robert Boyle (Boyle), social workers Barbara Dallis (Dallis) and Wellman (Wellman) , Sonia Jimenez (Morins babysitter and alleged paramour), and the County of Los Angeles. Elwood alleged seven causes of action. They are as follows: First Cause of Action ("COA"), violation of CA Civ. C. Sec.49(a), (unlawful taking or enticement of child from parent), applied to all defendants; Second COA, defamation, applied to Jimenez; Third COA , invasion of privacy, applied to Jimenez; Fourth COA, violation of CA Pen. C. Sec.11172(a), making false charges of child abuse/neglect, applied to Delaplane and Morin ("Morin"); Fifth Cause of Action, violation of 14th Amendment Due Process Clause (substantive and procedural), applied to all defendants except County ; Sixth COA, violation of 14th Amendment Equal

16 Protection Clause (based on D. Elwood's gender and status as a victim of domestic violence), applied to all defendants except County ; Seventh COA, Monell violation, applies to County. Jimenez defaulted but the Court refused to enter default judgment. Thus, the second and third causes of action were dismissed. The Court also dismissed without prejudice the Fourth Cause of Action declining pendent jurisdiction. The Court entered judgment of dismissal on the other four causes of action. Barry appealed from the judgments of dismissal and from the order denying default judgment against Jimenez. Barry had received leave to appeal the dismissal of Boyle before final judgment. Thus, there were two appeals from the same lawsuit. Elwood v. Morin, Appeals Cases Nos. 02-56077 and 02-56918. Appendix G and H The Court of Appeals affirmed the judgments of dismissal in both cases and order denying default judgment against Jimenez in the 02-56918 case. There was no mention that any of the causes of action were frivolous. Barry filed a Petition for Writ of Certiorari to the Ninth Circuit concerning the judgment of dismissal on the conspiracy claim on May 24, 2004. No. 0434. On October 4, 2004, this Court denied the petition. Appendix J On remand, only the County and Morin sought attorney fees. The District Court ruled that the Sec.49a claim, the civil conspiracy claims, and the Monell claim were frivolous. Elwood appealed the decision. Elwood v. Morin, Appeal Case No. 04-55630, Appendix E The Court of Appeals upheld all the awards of attorney fees. (2) Elwood v. Drescher, 02-4656.

Barry filed this lawsuit in June 2002. It was brought under 42 U.S.C. Sec.1983, the U. S. Constitution, the Child Support Enforcement Act (CSE Act), both state and federal, and Child

17 Abuse Reporting Act found at 42 U.S.C. Sec.5119, et seq. and Penal Code Section 11170. The plaintiffs were Darla Elwood, her parents, Terri and Edward Elwood, her close friend, Meinke, and her oldest son, Anthony Delaplane. There were eight defendants who were served with process: Juvenile Court Referee Skeba, Commissioner Zakon, Judge MacLaughlin, Judge Kehiayan, and Judge Farrell all Los Angeles Superior Court jurists; Robert Drescher, attorney for Morin, Hutchinson, a Los Angeles County attorney, and California Department of Justice. Elwood sued Ref. Skeba for injunctive relief to restore the parties to status quo ante. She had dismissed the charges against Anthony but refused to return the children to their mother. Elwood, Meinke, and Elwoods parents sued J. Farrell for injunctive relief and damages because he continued to hold hearings when he no longer had jurisdiction. There was a statutory stay in place while their appeal from the denial of their anti-SLAPP motion against Drescher and Morins SLAPP complaint was pending. Meinke sued J. Kehiayan to reinstate her OSC

because he dismissed her OSC re: contempt against Morin for violating the two year civil harassment injunction she had obtained against him when all the evidence was in her favor. Elwood sued Comm. Zakon and J. MacLaughlin for injunctive relief because J. MacLaughlin lacked judicial authority to assign a Child Support Enforcement Act (CSEA) prosecution against Elwood to Comm. Zakon because he was not a trained, certified CSEA commissioner. Comm. Zakon lacked judicial authority to accept the assignment. Morin and the County had filed the enforcement action against her based on a default order of child support she had never seen after she filed her civil rights action. Elwoods son Anthony also sued because his name is in a nationwide child abuse registry

18 as if he had been found guilty of sexual molestation when Ref. Skeba, Juvenile Court Referee, dismissed the juvenile Court petition against him for insufficient evidence, the District Attorney refused to prosecute, and the Sheriff closed the case. Plaintiffs alleged five causes of action. They are as follows: First Cause of Action (COA), which applies to D. Elwood and to Comm. Zakon, J. MacLaughlin, Ref. Skeba, and Hutchinson based on Deprivation and Conspiracy to Deprive D. Elwood of Due Process and Equal Protection of the 14th Amendment and violation of First Amendment, Right to Petition Government and Free Speech; Second COA which applies to A. Delaplane and to Defendants Danowski and Dept of Justice (DOJ) based on deprivation of due process under the 14th Amendment. The defendants were dismissed with prejudice because they are the wrong defendants. Barry had sought leave to substitute as Defendants Barbara De Muro and the head of the department within the State DOJ who oversees the Child Abuse Registry. Ms. Barry sought leave to do so, and the Court denied the request. Third COA which applies to D., T., and E. Elwood, and Meinke and to Drescher and J. Farrell based on violation of Due Process Clause of the 14th Amendment and violation of First Amendment - Right to Petition Government and Free Speech. Fourth COA which applies to D. Elwood and to Torgerson, FTB, and IRS based on violation of Due Process Clause of the 14th Amendment. The defendants were dismissed with prejudice because they are the wrong defendants and Appellants sought leave of court to substitute as Defendants the heads of the state CSE Department and the County CSE Department which was denied by the court.

19 Fifth COA - Applies to Meinke and to J. Kehiayan based on denial of Due Process Clause of the 14th Amendment and violation of First Amendment - Right to Petition Government and Free Speech. The Court dismissed the lawsuit. Elwood v. Drescher, Appeal No. 04-56917, Appendix I: The Court of Appeals affirmed the judgments of dismissal. The Court said nothing about any of the claims being frivolous. On remand, the jurists, Hutchinson, Drescher, and Dept of Justice sought attorney fees. The Court awarded fees to all the defendants and ruled that the causes of action were frivolous. Elwood v. Drescher, 456 F.3d 943, Appendix F In a published decision, the Court of Appeals reversed all the causes of action, except for the cause of action related to Anthony. It affirmed the order of attorney fees to Hutchinson. It reversed the other three awards of attorney fees to the jurists, to Drescher, and to the California Dept of Justice, the latter only to recompute the fees for the department. Factors Tending to Prove the Causes of Action Were Not Frivolous. 1. 2. Judge Baird withdrew the OSC re: sanctions. A Ninth Circuit panel found merit to Barrys brief arguing the Drescher claims

and denied the motions for summary affirmance. 3. A Ninth Circuit attorney nominated the Boyle appeal for settlement. She

obviously believed the case had merit. 4. In affirming the judgments of dismissal, the first panel said nothing about the

20 claims being frivolous. 5. The plaintiffs obtained catalytic relief. J. Farrell stopped holding hearings as

Barrys clients litigated the denial of their anti-SLAPP motion in the Court of Appeals. Just a few days after the Ninth Circuit panel denied the motions for summary affirmance, Los Angeles Superior Court relented and assigned Elwoods CSEA case to the proper CSEA court. Thereafter, a properly-trained and qualified CSEA commissioner vacated and set aside the default order of child support of $654 a month Morin and the County had obtained against Elwood without her knowledge. The arrears were around $20,000, perhaps more. Besides the civil prosecution, Morin and the County had filed a criminal prosecution against Elwood as well. It took Barry two years of fighting the two prosecutions in superior court before justice was done. The federal lawsuit provided the catalyst to transfer the case to the proper CSEA court. 6. In the Drescher case, the Ninth Circuit reversed the order of fees to the jurists

because the defendants were dismissed for lack of jurisdiction. The opinion was silent on whether Dreschers claim was frivolous. However, Barry was successful in convincing the Court to overturn a 26 year old precedent, that pro se attorney defendants sued in civil rights actions are entitled to attorney fees should they prove the claims against them were frivolous. The Dept of Justice did not seek attorney fees on remand. 7. The ruling that the cause of action against California Department of Justice

brought on behalf of Anthony Delaplane, the son of Darla Elwood, was frivolous is inconsistent with another published decision of the Ninth Circuit. Anthonys claim was the precursor to, or the trailblazer for, Humphries v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2009) revd on issue of attorney fees awarded against County in 562 U. S. ____ (2010) No. 09350. (Monells

21 policy or custom requirement applies in 1983 cases irrespective of whether the relief sought is monetary or prospective.) Humphries was filed in the same court Barry had filed the Elwood lawsuits just six months after Barry filed on behalf of Anthony. If Barry had known about Humphries, she would have sought to join in its appeal. Barrys only legal error was not naming either the Attorney General or the head of the department in charge of the child abuse index in the DOJ in his/her official capacity, rather than the DOJ by itself. Once she realized her error, she sought to correct it at the trial level and was denied the opportunity. 8. With respect to the conspiracy claims in the 01-8582 case, Judge Baird had found

that the complaint established concerted action among the coconspirators (Morin, Delaplane, Boyle, Jimenez, and the two social workers) to deprive Darla Elwood of her rights to due process and equal protection under the 14th Amendment. Still, the District Court ruled the claims were frivolous. The Ninth Circuit stated in its opinion affirming the ruling: In her fifth and sixth causes of action, alleging conspiracies to deprive her of her constitutional rights, Elwood failed to allege facts supporting a meeting of the minds among the defendants. The fact that she adequately pled one element of these claimsthe state action requirementdoes not render the claims nonfrivolous. P.4, Case No. No. 0555724, unpublished memorandum opinion, July 28, 2006. Appendix E. The Court provided no legal precedent for this ruling. Barrys clients would not allow her to petition for rehearing and suggestion for rehearing en banc. Barry has taken the ruling to mean that the failure to prove meeting of the minds (which she always contended was proven by circumstantial evidence of the concerted action of the coconspirators) was a frivolous element which trumped the element found to have merit. Barry has not found any legal authority in federal civil rights fee litigation which parsed a cause of action down to its elements, held one element to be frivolous, then held it trumped the

22 element deemed to have merit, thus making the cause of action frivolous. Prior to filing the amended complaint in February 2002 in the 01-8582 case, Barry had conducted research on civil rights conspiracy case law because she had represented a father, Steven Goodrich, who was denied access to his son based on a conspiracy to manufacture a fraudulent domestic violence arrest in Goodrich v. City of Paso Robles, et al., Case No. CV-007947 DT. Barry had amended the complaint for the pro se plaintiff, Steven Goodrich, whose case was pending in the same courthouse as eventually Elwoods lawsuit was. Barry alleged a civil rights conspiracy on behalf of Goodrich, that police officers, the wife of a police officer, and Goodrichs ex wife conspired to falsely accuse, arrest, and prosecute Goodrich for a false domestic violence crime so that the ex-wife could obtain a temporary custody order which led to her obtaining a permanent order of custody. On July 2, 2001, Honorable Dickran Tevrizian denied the two Motions to Dismiss the conspiracy claim. This conspiracy was very similar to that of Elwoods conspiracy only the parents genders were reversed. The goal was the same of the coconspirators: deprive the parents of custody of their respective child/children. REASONS FOR GRANTING THE PETITION. I. THE LAW ON WHETHER STATE BARS HAVE JURISDICTION OVER FEDERAL PRACTITIONERS IS CONFUSING, CONTRADICTORY, AND REMAINS UNSETTLED.

Subdivisions (a), (b), and ( c) of Supreme Court Rule 10 provide guidance to those seeking review in this Court for what factors this Court examines in determining whether to grant or deny certiorari. Given the unsettled law on the issue Barry contends that all three

23 subsections apply. This issue affects all federal practitioners in the United States. California Case Law and Bar Court Cases. 1. In re McCue (1930) 211 Cal. 57, 66: The State Bar Act and other statutes enacted for the purpose of regulating the practice of law in this state are applicable to our state courts only. 2. Geibel v. State Bar (1938) 11 Cal.2d 412, 415: If an attorney admitted to practice in the courts of this state commits acts in reference to federal court litigation which reflect on his integrity and fitness to enjoy the rights and privileges of an attorney in the state courts, proceedings may be taken against him in the state court. [Citations.] 3. Cowen v. Celabrese (1964) 230 Cal.App.2d 870, 872-873: The State Bar Act of California does not purport to regulate the practice of lawyers before the United States Courts, or their referees. 4. Bluestein v. California State Bar (1974) 13 Cal.3d 162, fn 10: The State Bar Act, which includes the above quoted section (see Bus. & Prof. Code, 6000), does not regulate practice before United States courts. [Citations.] Here, however, we are not concerned with such practice. 5. Birbrower, Montalbano, Condon & Frank v.Superior Court (1998) 17 Cal.4th 119: The Act does not regulate practice before United States courts. 6. In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416, 420, citations omitted.) Barring the [s]tates from disciplining their bar members based on misconduct occurring in federal court would lead to the unacceptable consequence that an attorney could engage in misconduct at will in one federal district without jeopardizing the state-issued license that facilitates the attorney?s ability to practice in other federal and state venues. (Canatella v. California (9th Cir. 2005) 404 F.3d 1106, 1110-1111.)

24 7. Benninghoff v.Superior Court (State Bar) (2006) 136 Cal.App.4th 61, 65, 74: The court could not assume jurisdiction over federal practice [of attorney resigned from Bar handling federal prisoners requests for transfers], because federal regulations governing practice before federal courts and agencies preempt state law prohibiting the unauthorized practice of law. Thus, we grant his petition to this extent only. 136 Cal.App.4th at 65.

8.

In re Daniel David Dydzak, Case Nos. 04-O-14383; 06-O-10960, Unpublished Opinion on Review and Order filed December 3, 2009: Under the facts of this case, we agree with the hearing judge that Dydzak may not be disciplined under section 6125, even though he practiced law in the federal court while he was suspended by the State Bar. ... cf. In the Matter of Wells (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 896, 902-903 [discipline may be imposed for UPL in federal court when matter involves settlement of state law claims]. We find Dydzak culpable of a violation of section 6126 for representing in his declaration filed in the federal court that he was duly admitted to practice before all California courts. [emphasis added] The case, In the Matter of Wells, supra, cited by the Bar Court in Dydzak demonstrates

dramatically why this Court should accept review. Its conclusion that it can regulate practitioners in EEOC proceedings in view of the extensive case law holding that federal administrative proceedings are off limits to state bars is startling. It also contradicts the holding of the Federal Circuit in Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005) decided just a year before. Augustine is a case involving an attorney, Wild Chang, who was not licensed in California but was, in New York and Massachusetts. Chang conducted a hearing in California before the Merit Systems Protection Board (MSPB) and prevailed for his client. The MSPB ruled that the client could not be awarded attorney fees because her representative was not licensed by the California bar. The Federal Circuit found that the prohibition in Cal. Bus. & Prof. Code 6125 (2003)

25 that "No person shall practice law in California unless the person is an active member of the State Bar" has never been applied ...to restrict attorney practice before a federal administrative agency. To the contrary, a 1994 memorandum issued by the Office of Professional Competence, Planning & Development of the State Bar of California indicated that the bar at least does not view section 6125 as covering federal administrative proceedings: The State Bar takes the general position that where a non-member is permitted to practice before a federal court (district, appellate, admiralty) or a federal agency (INS, Patent Office), such individual is not engaged in the unauthorized practice of law while performing activities before such federal courts or agencies in California on behalf of clients. The Court concluded that ...the federal statute here does not incorporate state law and that an attorney licensed in any state or federal jurisdiction is authorized to practice as an attorney before the Board. It ordered attorney fees to Chang. In fn 13 at p. 11. slip opin, of the Wells opinion, the Court states: Parenthetically, we uncovered no precedent or legislative history establishing that 29 Code of Federal Regulations (CFR) 1601.7, sub.(a), cited by respondent as authority for her preemption argument, either authorizes the practice of law before the EEOC by nonattorneys or is intended to pre-empt state law regulating UPL. This flies in the face of the Federal Circuits holding in Augustine, supra, and ignores the fact that as long as Title VII has been in existence non attorneys have represented federal employees, including in EEOC evidentiary hearings. First, the Bar Court ignores the plain meaning of 29 C.F.R. 1601.7 that A charge on behalf of a person claiming to be aggrieved may be made by any person, agency, or organization. It also ignores 29 CFR 1614.605 which states (a) At any stage in the processing of a complaint, including the counseling stage 1614.105, the complainant shall have the right to be accompanied, represented, and

26 advised by a representative of complainant's choice. The Bar Court disregarded 29 CFR 1614.109(e) which assumes non attorneys are conducting hearings since it provides authority to the administrative judge and the EEOC to refer not just an attorney to a bar but authorizes them to discipline the non attorney as well. The Bar Court also ruled that preparing or filing a discrimination charge with the EEOC is not a UPL, but assisting a client in filing one with a state agency is. According to the Bar Court, Wells, licensed in California but not in South Carolina, cannot represent a client in an EEOC proceeding in South Carolina; whereas, according to the Federal Circuit, Chang, licensed in New York and Massachusetts but not in California can represent a client in a MSPB proceeding in California (and get paid attorney fees). The Bar Court made a broad, sweeping conclusion in fn 14, p.12 that Our conclusion comports with the general rule that attorneys who are not admitted to practice in the state where they performed the services are not entitled to recover compensation for such services even though admitted to practice in another state. [Citation.] Yet, the Federal Circuit ordered that Chang was entitled to attorney fees for winning a MSPB hearing in California although he is not licensed there. In Winterrowd v.American Gen. Insur., 556 F3d 815, 820, 822, 825 (9th Cir. 2009), discussed infra, the Ninth Circuit ordered attorney fees based on a state statute to an Oregon attorney practicing in the Central District of California under the supervision of a California attorney. It also contradicts California case law, such as McCue, supra, and Cowen, supra, in which the Court ruled that attorneys unlicensed in California who appear in a federal court in California cannot be prosecuted for a UPL or are entitled to attorney fees.

27 This Court should accept review so that all federal practitioners, attorneys and non attorneys alike, know where they stand in the fifty states. A decision by this Court on this very controversial issue will be far easier to locate when Bars in any of the fifty states come knocking on the door of federal practitioners than, say, a Federal Circuit ruling. Federal Courts, including this Court, have intervened when bars attempted to regulate and discipline non attorneys practicing in federal venues. Thus, state bars may not regulate or discipline patent practitioners, Sperry v. Florida, 373 U.S. 379, 385... (1963). jailhouse lawyers, Johnson v. Avery, 393 U.S. 483 (1969) bankruptcy creditors service, State Unauthorized Practice of Law Committee v. Paul Mason & Associates, Inc.,46 F.3d 469 (5th Cir. 1995) contract investigators working for the FBI, United States of America, v. Commonwealth of Virginia, 139 F.3d 984 (4th Cir. 1998). It was not the Virginia Bar but the state which insisted that the investigators be licensed, and the FBI disagreed and prevailed. Also, the California Court of Appeal overruled the Bar Court and held that it had no jurisdiction over the unlicensed attorney assisting prisoners in obtaining transfers because the Federal Bureau of Prisons permitted non attorneys to perform this service. Federal courts have repeatedly held that the primary responsibility for disciplining or overseeing attorneys practicing in their courts is theirs and often have overruled Bars in doing so. Because of page limitations, only the case citations are supplied. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557; Paul E. Lacona SE Inc. v.

28 Humphrey, 722 F2d 435, 439 (9th Cir. 1983); Trone v. Smith, 621 F.2d 994, 999 (9th Cir.1980); Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973); Winterrowd v.American Gen. Insur., 556 F3d 815, 820, 825 (9th Cir. 2009); Silverman v. State Bar of Texas, 405 F.2d 410, 414 (5th Cir. 1968); Baylson v. the Disciplinary Board of the Supreme Court of Pennsylvania, 975 F.2d 102 (3rd Cir. 1992). Federal courts have repeatedly held that bar discipline does not necessarily lead to discipline in the federal court. An attorney is entitled to a due process hearing before any reciprocal discipline is imposed, if any. Because of page limitations, only the case names are provided. Selling v. Radford, 243 U. S. 46 (1917); In re Disbarment of Isserman, 345 U. S. 286, 289 (1953); Theard v. United States, 354 U.S. 278, 282 (1957); In re Ruffalo, 390 U.S. 544 (1968); In Re: Steven Kramer, 193 F.3d 1131 (9th Cir 1999); In re Mary Poole, Debtor, 222 F.3d 618, 620-621 (9th Cir. 2000). Contra: federal courts holding that a bar can discipline attorneys for their conduct in federal court: In re Sawyer, 260 F.2d 189, (9th Cir. 1958): woman attorney who defended labor and union leaders in Smith Act (18 U.S.C.A. 2385) prosecution in Territory of Hawaii: This Court reversed Sawyers bar conviction. In re Sawyer, 360 U.S. 622 (1959) Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004). California Bar initiated discipline against immigration attorney. Statewide Grievance Committee v. Gifford, 76 Conn.App. 454; 820 A.2d 309 (Conn. Appell. 2003): Connecticut Bar disciplined Attorney Gifford in connection with a federal

29 employment discrimination lawsuit. The local rules of the Central District and of the Ninth Circuit on attorney discipline say nothing about the various state bars power to prosecute attorneys practicing in the federal court. Rather, the rule recites the District Courts authority to refer a federal practitioner to the Bar for discipline, not the reverse. Appendix Q, R With the Bars stepping into the federal disciplinary arena abrogates the rule making authority of the federal courts as set out in in 28 U. S. C. sec.2071(a) and 28 U.S. C. Sec.2072(a), Appendix O, P. As the Court noted in Baylson, supra, 707 F.Supp. At 333: Individual federal courts have possessed, from their inception, rulemaking authority in some form. See Act of March 2, 1793, Ch.22, Sec. 7, 1 Stat. 335; Note, Rule 83 and the Local Federal Rules, 67 Colum. L. Rev. 1251, 1253-54 (1967). The California State Bar Act was not enacted until 1927. Many attorneys file actions in federal court precisely to remedy harms caused by local authorities (for example, police misconduct, whistleblower suits). Allowing bars to prosecute federal practitioners often results in political prosecutions in the interest of parochial local interests. The Ninth Circuit reversed three awards of attorney fees in Elwood v. Drescher, supra, in a published decision awarded to state jurists, to an attorney practicing in California, and to the California Dept of Justice. The Bar was more interested in punishing Barry for the reversal of these awards than in protecting the public, particularly as will be demonstrated infra, since Barry was also suing the City of Los Angeles in federal court on behalf of whistleblowers. On the other hand, when the Ninth Circuit disciplined attorneys who control the Bar, the Bar refused to

impose reciprocal discipline in violation of the State Bar law. The Gadda and the Gifford analyses were question begging and circular. There is no question that bars can regulate attorneys in their respective states. There is no question that federal courts have full authority to discipline attorneys appearing before them. The issue is how far does bar jurisdiction go? Federal courts have never issued OSCs re: disbarment to attorneys for what they did in state courts (except on reciprocal discipline referral). Yet, bars issue NDCs to attorneys for what they did in federal courts as in Gedda, and Gifford without a discipline referral from the federal courts. Thus, the comity is lopsided. This haphazard form of regulation with federal practitioners never knowing when a bar will prosecute them, often in derogation of federal preemption as aptly demonstrated by the discussion of the Bar Court rulings or dicta in fns 13 and 14 in the Wells opinion certainly calls for a federal national bar. See Comisky & Patterson, The Case for a Federally Created National Bar by Rule or by Legislation, 55 Temp. L. Q. 945, 960-964 (1982); Simonelli, State Regulation of a Federal License to Practice Law, 56 N. Y. State Bar J. 15 (May 1984) as cited in Frazier, supra. See also Christine R. Davis, Approaching Reform: the Future of Multijurisdictional Practice In Todays Legal Profession 29 Florida State University Law Review 1339. It also calls for this Court to accept review and resolve once and for all how far Bars can go in regulating the conduct of federal practitioners, if at all. II. THIS COURT SHOULD ACCEPT REVIEW BECAUSE OF THE BARS SYSTEMIC GENDER BIAS, CRONYISM, AND CORRUPTION RESULTING IN DENIAL OF DUE PROCESS TO BARRY.

There are several factors which coalesced resulting in Barrys prosecution. The gender bias resulting in the Bars support of violent men, while prosecuting Barry for opposing 30

violence, Barrys representation of Los Angeles City whistleblowers, her winning the Marez case in the Ninth Circuit, and her impecunious status. There is also the systemic cronyism and which affects prosecutorial discretion as to who should be disciplined. A. Girardi and Lack Disciplined by the Ninth Circuit but Not by the Bar; Barry Not Disciplined by the Ninth Circuit but by the Bar.

The Ninth Circuit published its opinion on discipline against Girardi and Lack (and two attorneys working for them respectively) on July 13, 2010. In re Girardi, Nos. 08-80090, 03-57038. The Bar decided it was not enough to impose reciprocal discipline that the discipline proceeding went on for about three years, that the Court appointed Judge Tashima as Special Master, that there was extensive discovery and briefing, that Judge Tashima presided over a four-day trial of the issues. It was not enough that On March 21, 2008, Judge Tashima filed a detailed report addressing the motion for sanctions, in which he concluded that Girardi had recklessly made false statements to the Ninth Circuit, while the three Respondents from the Lack firm had done so knowingly, intentionally and recklessly and that Judge Tashima recommended imposing sanctions totaling $390,000. It was not enough that on the same day, Judge Tashima filed under seal a brief Supplemental Report addressing the question of attorney discipline, that the Panel appointed Professor Rory K. Little as Independent Prosecutor on July 10, 2008, and that on May 12, 2009, Professor Little filed his report detailing his own investigation and review of Judge Tashima's record. It was not enough that on October 7, 2009, Judge Tashima filed a corrected version of his March 21, 2008 report and that three respected jurists of the Ninth Circuit, William A. Fletcher,

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Marsha S. Berzon, and N. Randy Smith ruled on the discipline in a detailed opinion. This is all reported in In re Girardi, supra. Rather than follow the law, found at Busi. & Prof. C. Sec.6049.1(b)(1)-(3), Appendix S, which is compulsory, Chief Trial Counsel James Towery refused to issue Notices of Disciplinary Charges (NDC) against Girardi and Lack forcing them to prove they were denied due process and that the disciplined conduct did not qualify for discipline under California law. The latter was already established since the Ninth Circuit had found that Girardi and Lack had violated Cal. Rule Prof. Conduct 5-200 and Bus. & Prof.Code 6068(d) (lawyer's duty not to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.). Instead, Towery placed the burden and the expense on the Bar membership to prove that the Bar should issue NDCs to Girardi and Lack by appointing Jerome Falk as a very special prosecutor to investigate the matter. Falk is a partner and owner of the law firm, Howard, Rice, Nemerovski, Canady, Falk, & Rabkin (Howard Rice). Just four years before Towery appointed Falk, Howard Rice had successfully defended both Girardi and Lack in a lawsuit in which Robert Copple, a former client of Girardi and Lack, a class member, had sued Girardi and Lack and the other plaintiffs attorneys for conspiracy in obtaining far greater attorney fees than they should have received sixty million dollars which was taken from the fund to pay the class members. Copple v. Astrella & Rice, P.C., 442 F.Supp.2d 829 (U.S.C.D. 2006) . On the other hand, the Bar foisted Jerome Craig as a special prosecutor on Barry in her companion discipline case who she strongly objected to because he is a partner in Morrison & Foerster, a corporate employment defense firm specializing in sexual harassment cases.

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Whereas, Towery appointed Girardi and Lacks former defense attorney as their special prosecutor, Mike Nisperos, a former Trial Counsel, appointed an attorney to investigate Barry who was clearly an adversary and who would enjoy seeing Barry being put out of business. There was another serious conflict Craig did not disclose to Barry before she signed the stipulation. Robert Drescher, the attorney whose attorney fees were reversed in Elwood v. Drescher, supra, filed a void malpractice action against Barry on behalf of Cytodyn in December 2006. Cytodyn of New Mexico v. Barry, Case No. BC 362909. In September 2004, when she was representing Cytodyn, the Court granted Defendants Motion for Summary Judgment. In July 2000 Judge Adams had convicted Barry of contempt in a criminal prosecution involving another battered mother trying to regain custody of her daughter. She referred Barry to the Bar in 2000. The Bar sat on the charges for two years and four months. Out of the blue, in November 2002 Craig wrote Barry about the contempts, and she immediately responded to the Bar. Barry wrote Craig in January 2003, and he never responded. So, there was no activity on the prosecution for six months. Then, Craig demanded documents from Barry which he obtained from Barry in August 2003. Then nothing. In late November 2004, one and a half years after Barry last heard from Craig, Craig sent Barry a draft of proposed disciplinary charges re: Adams contempt convictions, by this time four and a half years old, and just a half year shy of the expiration of the five year Bar statute of limitations. Because there had been such a ridiculously-long passage of time between Adams Bar referral and the eventual stipulation Barry signed on June 22, 2005, the Bar acknowledged in the stipulation that no court had cited Barry for contempt in the almost five

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years since Adams had convicted her. Unknown to Barry at the time she signed the stipulation, on June 16, 2004 , thee months before Barry lost the Cytodyn MSJ, Cytodyn had issued a press release stating the following: CYTODYN RETAINS MORRISON & FOERSTER Santa Fe NM - June 16, 2004 (BW). CytoDyn, Inc. is pleased to announce it has retained Morrison & Foerster, one of the largest of the international law firms. .... Http://www.cytodyn.com/newsroom.html, p.1, emphasis added. Craig was resurrecting Barrys prosecution, not in the interest of the protection of the public, but for the benefit of his own firms client, Cytodyn. Drescher regularly attaches Barrys Bar prosecution documents to documents he files in court, both in the legal malpractice action against Barry and then in the malicious prosecution action Barry filed against Drescher and Allen, the alter ego of the corporation. Returning to the Bars handling of Girardi and Lacks reciprocal discipline (or, lack thereof, no pun intended), the conflict of interest was far greater than already described. Douglas Winthrop is the managing partner of Howard Rice. He was also the president of the State Bar Foundation. Howard Miller (not to be confused with the Howard Rice firm) is the law partner of Girardi. He was also originally named in the Ninth Circuit OSC along with Girardi and Lack but the Court dismissed the charges against him. Miller is a former Bar president who served 2009-2010. In 2010 Miller was both a board member of the Bar Foundation and the Bar President at the same time as Winthrop was serving as Bar Foundation president which was at the same time Winthrops law partner Falk was investigating Girardi and Lack. Falks law firm also advertises itself as the lawyers for lawyers. Two of their attorneys, Sean SeLegue and Noah Rosenthal, have membership in the specialized Association 34

of Discipline Defense Counsel. Recently, SeLegue suffered public embarrassment in a published decision in Benjamin, Weill, & Mazer v. Kors (2011) 189 Cal.App.4th 126. SeLegue served as the arbitrator and did not disclose to Ms. Kors, the client disputing the fees of her former attorneys, that his practice focused on representing lawyers in litigation with former clients. As a result of his failure to disclose, the attorney fee award was overturned. Yet, Towery had to know he had retained an attorney to serve as Bar prosecutor whose firm could not afford to rule in favor of the Bar, given one of its key practice areas, that of representing lawyers in trouble with the Bar and with their clients. The tentacles of cronyism extend even further. Thomas Nolan, a partner with Skadden Arps, defended Girardi in the Ninth Circuit disciplinary proceeding. Prior to Towery appointing Falk as very special prosecutor, Skadden Arps (including Raoul Kennedy) and Howard Rice (including Falk) had worked together as cocounsel (in addition to other law firms) representing the same defendant in City of Hope National Medical Center V. Genentech, Inc. (2008) 43 Cal.4th 375, 75 Cal.Rptr.3d 333, 181 P.3d 142. Even as Falk was supposedly pondering Girardis and Lacks discipline, Falk, Winthrop, and their firm Howard Rice were busy with Nolan, Raoul Kennedy, and ten other attorneys of Skadden Arps serving as cocounsel in representing MGA Entertainment Inc., as Intervenor Re: Cv04-09059" in Bryant v. Mattel Inc, U. S. District Court, Central District of California, Case No. 2:04-cv-09049-DOC -RNB which just terminated on August 4, 2011. Judge Carter awarded Falks and Nolans client MGA $105,688,073.00 in attorneys' fees and $31,677,104.00 in costs. Towery was involved in recent litigation with Falk. Towery (law firm Hoge, Fenton, Jones, & Appel) represented ConnectU, the company founded by the Winklevoss twins, Tyler

35

and Cameron in U. S. District Court for the District of Massachusetts, Civil Action No. 1:07-cv-10593 (DPW). Towery also represented ConnectU, and Falk and other attorneys of the Howard Rice law firm represented the twins and Narenda as intervenors in appeals in the Ninth Circuit. The Facebook, Inc., et al v. ConnectU, Inc., et al, Case No. 08-16745 associated and/or consolidated with five other appeals involving the same parties. On April 4, 2011, the Court ruled in favor of Facebook in a published opinion written by Chief Judge Kozinski. Falk argued the appeal. Working so closely with Falk and the other Howard Rice attorneys, and serving as Bar Counsel, Towery had to know all of these crony connections and conflicts of interest. Precisely because Towery knew of them is why he chose Falk. This leaves the rest of us 226,968 Bar members without cronies in the Bar always wondering when the other shoe will drop. Girardi and Lack through their close ties with Miller, Falk, Winthrop, Nolan, and Kennedy insured the outcome with Towery serving as the linchpin to their success. There was

a public outcry. The Bar convened a committee, called the RAD Committee (this writer could not determine what the acronym stands for) to investigate the investigator (Falk). A Skadden Arps attorney, Alec Chang, was appointed to the committee. Chang and the other members found absolutely nothing wrong with what Girardi, Lack, Towery, Falk, Winthrop, Nolan, Kennedy, and Miller had done. There are other reasons why Girardi and Lack were not disciplined. Girardi is personal friends with the former Chief Justice of the California Supreme Court, Ronald George. Justice George appointed Girardi to the California Judicial Council. The Supreme Court of California ultimately retains control over which attorneys are

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disciplined and which are not. See In re Rose (2000) 22 Cal.4th 430, 438, 93 Cal.Rptr.2d 298; 993 P.2d 956: ....[T]he bar's role has consistently been articulated as that of an administrative assistant to or adjunct of this court, which nonetheless retains its inherent judicial authority to disbar or suspend attorneys. [Citations.]" [Citations.]' " [Citation.] The State Bar Court, however, is not itself a judicial court established by article VI. [fn. 4 omitted.] In an article entitled Los Angeles Lawyers Settle on Music By Kristina Horton Flaherty, Staff Writer, CA Bar Journal, November 2010, Flaherty writes that ....During the State Bars annual meeting in Monterey last September, the Girardi Keese law firm had the [70 attorney member] orchestra flown in to perform along with singer -songwriter Paul Anka at a special reception for retiring Chief Justice Ronald George and outgoing State Bar President Howard Miller..... The Ninth Circuit published its decision on discipline of Girardi and Lack on July 13, 2010. Girardi paid for the orchestra and Anka and flew them up at his expense to perform at the Chief Justices retirement party in September 2010. The Bar announced it would not discipline Girardi and Lack in December 2010. Just two years before Falk declined to issue NDCs against Girardi and Lack, Lack and his law firm cocounseled a class action lawsuit with Justice Georges son, Eric George, whose law firm is Browne, George, & Ross LLC representing the plaintiff in Taste of Nature, Inc. v. Matson Navigation Co., Inc., et al., Case No.08-CV-03073-PA-SS in the Central District of California before it was transferred to the Western District of Washington. Girardi further ingratiated himself into the Bar inner circles by making Joe Dunn, Executive Director of the Bar, one of his closest friends, even possibly financing some of his ventures. Girardi & Keese and Howard Rice both donated between $10,000 to $24,999 to the Bar Foundation. State Bar Foundation Report, 2010, p. 20, 37

http://www.foundationstatebarcal.org/about/annualreport/2010.pdf Towery lasted less than a year and resigned under a wave of protests. He need not worry about job security. He can look to Girardi, Lack, Miller, Nolan and Skadden Arps, Falk and Howard Rice for work if his old firm, Hoge Fenton. does not take him back. Thus, the Bar has positioned itself as more powerful than the federal courts, ignores the Supremacy Clause and rule-making authority of the federal courts. While the Ninth Circuit is quick to honor reciprocal discipline (hopefully, it declines, in Barrys case), the Bar is not. B. California Judges in an Uproar over Justice Georges Autocratic Control of Courts and Misuse of Funds.

Besides attorneys railing at the uneven handed and biased disciplinary system, numerous judges, Sacramento, Los Angeles, Orange, San Francisco, are upset at what the former justice has left as his legacy and are rebelling against it, i.e..a centralized Administrative Office of Courts and Judicial Council dictating to the trial courts and siphoning off needed funds for the trial courts. In an excerpted editorial dated 3/15/2011, entitled Who Really Runs the Judicial Branch written by Maryanne G. Gilliard (a judge at the Sacramento County Superior Court and director of the Alliance of California Judges), appearing in the Daily Journal she writes in part, Over the past 10 years, repeated clashes have erupted in the judiciary, all revolving around one question: Who really runs our judicial branch? The reality is that an imbalance of power currently rests in an insular triumvirate: the chief justice [Ronald George]; William Vickrey, the director of the Administrative Office of the Courts; and the chairman of the Judicial Council's Executive and Planning Committee, a 14-year council veteran. Judge Gilliard goes on to describe the debacle the chief justice created by centralizing the

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control of the courts in the AOC and the Judicial Council (of which Justice George made his good friend Girardi a member): .... The AOC is simply out of control. Its excesses have harmed the judiciary's reputation immeasurably. ...The alleged mistreatment of an AOC employee, who informed the press of the lavish spending at a council planning session on the budget shortfall, resulted in last year's enactment of whistle-blower legislation now affecting all 58 trial courts, not simply the AOC. [ Emphasis added.] Her Honor describes the devastatingly wasteful CCMS, which the former chief justice fully supported: The crown jewel of the AOC is CCMS. [California Case Management System]. Last year, the Alliance of California Judges fought for a legislative audit of CCMS. The former chief justice [George], the AOC, and the current head of the CCMS "oversight committee" all weighed in against it. Thankfully, our side prevailed. The February 2011 Bureau of State Audits report reveals a stunning record of failure, misinformation, mismanagement, and lack of oversight. The project, first slated at $250 million, may top out at $3 billion and will likely be obsolete by the time it is fully deployed in 2016.... The response of the former Chief Justice, and those aligned with him was to engage in name calling: Judges have publicly been dismissed as "ants," "shrill," "uninformed" (former chief justice [Ron George]), "clowns" (chairman, Executive and Planning Committee), "chicken little," and "strident" just to name a few.... [emphasis added.] C. Justice George Oversees a Dismantling of Due Process for Attorneys.

Just as Justice George ran roughshod over judges throughout the state system, so he did over attorneys as he oversaw the ever expanding unconstitutional reach of the Bars authority. When he was Chief Justice, the Court issued In re Rose (2000) 22 Cal.4th 430, 438, 93 Cal.Rptr.2d 298; 993 P.2d 956 which affirms one-line denials of attorney petitions without oral argument and without the court providing the rationale for affirming the discipline. See, e.g., the 39

Courts order affirming Barrys discipline. Appendix B Justice Janice Brown (now on the District of Columbia Circuit Court of Appeal bench) wrote a strong dissent in In re Rose, supra. In this comer of the law, at least, we seem to be presiding over a union of the legislative and judicial components of government. It may be efficient; it certainly isn't pretty. And because it seems antithetical to the constitutional design, I dissent. Id. D. The Bars Support and Mollycoddling of Violent Men. 1. Morin the ostensible victim of Barrys advocacy.

As far as Barry could tell, Tady acted on a two year old complaint of Morin and treated him and his attorney Drescher as the victims. Tady designated Drescher as the star witness at Barrys trial. No deputy sheriff had ever arrested Morin for his acts of domestic or racial violence. The social workers who took Elwoods children from her and gave them to Morin were dismissive of the domestic violence Elwood alleged. All the judges who were made aware of Morins violence against his children made it clear that it did not matter to them. The Bar continues this tradition. Thus, Morin knew he could abuse his daughter, at his discretion. After Barry signed the stipulation, she learned by serendipity from the teens oldest brother, Anthony, (ironically, on the front steps of the LASC courthouse) that his sister refused to return to her fathers home while on a visit at her mothers, disclosed that Morin had been abusing her for years, and stated that she hated him. The evidence Morin is violent is as follows: * A two-year civil harassment injunction Amy Meinke, a friend of Darla Elwood, obtained against him. She described threats to kill her, breakins to the apartment where she and Elwood were living, his carvings into Meinkes door of weird threats, among other acts.

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An OSC re: contempt she brought against him for violating the injunction, such as, getting closer to her than the injunction allowed, driving slowly by her apartment building, a break-in at her apartment with the same m.o. Morin had used when he broke in before. [Which was dismissed with all the evidence in favor of Meinke which is why Barry sued the judge in federal court, to obtain a mandatory injunction ordering him to reinstate the OSC.] A tape recording (Morin knew he was being taped) of a telephone call between him and Elwood in which he (once more) threatened the life of Meinke; The declarations and/or juvenile court testimony of Darla Elwood and her two children, Anthony Delaplane and Tiffany Delaplane, describing his violence and threats against all of Darlas children, including her deceased son; A statement of a witness (who later recanted what she said, but at that point, most people who knew her believed she had a sexual relationship with Morin) who described the food Morin had thrown all over the kitchen including on the ceiling on one occasion when the deputy sheriff came out to escort Elwood and her children safely out of the apartment although not arresting Morin for domestic violence An OSC re: contempt Barry obtained against him, based on assault and false imprisonment on her behalf and Darlas and her family members behalf;

Darryl Austins testimony against Morin in both the child custody trial and in his deposition, as well as the police report on Morins crime against Austin, the photo of Austins black eye and swelling on his face where Morin had hit him, and records of medical treatment Austin sought for the injuries Morin inflicted on him. Morin is also homophobic in that he attacked Meinke, Elwoods friend who helped her out with child care, because he believed she was a lesbian, and for that reason alone, wanted her to stay away from his children or he would f kill her. Years later Meinke confirmed she is lesbian when she decided to come out. 2. Marshall Krause, Attorney.

Championing the childs violent father is consistent with the Bars refusal to discipline Marshall Krause, an attorney in Marin County, although he stipulated that he had abused his 41

daughter, Alanna Krause, in Los Angeles Juvenile Court. The Bar also refused to discipline Sandra Acevedo, Alannas counsel, although she falsified court documents, refused to listen to her clients pleas for protection and to be returned to the custody of her mother. She falsely denied that Alanna was being abused by her father. Alanna sued her father, his paramour, Lana Clark, Alannas therapist and Acevedo, in District Court, Krause v. Acevedo, et al., 02-cv-05277-JSW, N. D. CA. From the docket of the case, it appears that Krause and Clark settled with Alanna while the case was pending The Ninth Circuit considered Alannas appeal from the order granting dismissal of Acevedo , Krause v. Acevedo, et al., Case No. 03-17151. It affirmed the District Court decision in an unpublished decision on July 5, 2005 which was to grant quasi-judicial immunity to Acevedo because she had been court appointed. Krause retained Jerome B. Falk, the very same Falk who exonerated Girardi and Lack. Since Falk has enormous influence over the bar, it is clear why the Bar did not prosecute Krause for committing the crimes of child endangerment and abuse he had Falk as a personal attorney. That Krause was not prosecuted by the Bar and Barry was, more than reinforces the gender divide in law. Barry is not just female; she litigates cases about what it is to be female. Krause abused his daughter; Barry tried to rescue two daughters and a son from being abused by their respective fathers. Barry is disciplined opposing domestic violence but not Krause who engaged in it. 3. John F. Henning III, Attorney

Henning became angry with a rabbi and the rabbis friend. He attacked them on the street, causing him injury. According to the stipulation for discipline, Appendix T, the Bar 42

suspended Hemming for the same period of time as it did Barry, 60 days and Hemming had a prior discipline less than two years before, for the same crime, battery. Hemming however was placed on probation for only 18 months. Barry was given two years and a significant penalty of $5,000. The Bar also determined that the crime was not one of moral turpitude. Initially, the Bar alleged that Barry had committed moral turpitude. The Bar disciplined Barry because she opposed violence suspending her for 60 days, the same amount of time they suspended Hemming for engaging in it. E. Continuing Preference of the Bar to Prosecute on Behalf of Male Attorneys and to Disregard Barrys Complaints against Opposing Counsel.

As indicated, supra, Drescher was to serve as Tadys star witness if Barry had gone to trial. Drescher filed a legal malpractice action against Barry in December 2006. It was

dismissed in March 2009. Barry filed a malicious prosecution action against Drescher and her former client, Allen Allen, alter ego of Cytodyn, Inc. Drescher filed an anti-SLAPP motion which was granted in March 2011. The case is now on appeal Barry alleges extortion, fraud, violation of a state statute which permits lawsuits against non governmental individuals who violate constitutional rights, and malicious prosecution. The Bar refused to prosecute Drescher and notified her it was going to prosecute her on another of his complaints. It now has decided otherwise. So far. F. The Real Political Reason for Barrys Prosecution:

Barry contends the prosecution was not just about Morin, it has everything to do with the Los Angeles City Dept of Water and Power (DWP) whistleblower litigation she has been involved in since 2005. She has represented nine DWP employees in court, one very briefly.

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Paul Paquette, Assistant City Attorney who has defended almost all of them was among those of Barrys opposing counsel to notify a judge, in this case, Judge Nguyen, about Barrys pending discipline in Miranda v. Hokinson, et al.,Case No. 07-609, Central District of California. It is on appeal at this time. Case No. 11-56688. Sandra Miranda is a successful whistleblower. She was able to convince DWP to cancel a corrupt janitorial supplies contract. DWP punished her for that success by the creation of a retaliatory work environment. Pauqette notified Judge Nguyen of Barrys discipline in August 2010: 8. Sanctions in this case are justified in light of Attorney Barrys repeated failure to comply with this Courts Orders. In case the Court is not already aware, Ms. Barry is already embroiled in a State Bar disciplinary proceeding (Case Numbers 06-O-12210RAP and 07-H-12920) in which the State Bar intends to suspend her for two years. Paquette Exparte Application for Continuance of Trial Date and for Clarification of Courts Order; Declaration of Counsel, filed August 10, 2010, p.4. The NDC charges were filed against Barry in March 2008. A 10 minute YouTube video was put on the internet on January 17, 2008, in which Barry discussed the corrupt Empire janitorial supplies contract. A 28 minute video in which Barry and her DWP clients were interviewed by Steve Murphy concerning the contract was also put on the internet, although (surprisingly) she cannot find it on the internet at this time. It was at the end of the 28 minute video that Barry asked Laura Chick, former City Controller, newly appointed to the Bar Board of Governors, specifically to conduct an audit of Empire. Barry believes Chick encouraged Barrys Bar prosecution. There was another reason why Chick and the City wanted Barry soundly punished by the Bar, which was her winning the reversal in a published decision of the summary judgment in Marez v. Bassett, 595 F.3d 1068 (9th Cir. [Feb. 18] 2010), a case related to Mirandas . Barry did not sign the discipline stipulation until March 18, 2010, and then tried to rescind it which was denied. Appendix D 44

On October 6, 2009, oral argument took place in the Marez case. It went very well for Mr. Marez. Mr. Paquette was in attendance and he looked very upset after the oral argument ended. The Court issued its published opinion in the Marez case on February 18, 2010. The opinion detailed Marezs allegations of retaliation for making a report on the Empire contract, the same janitorial supplies contract that Miranda had successfully fought to have cancelled. Thus, anyone throughout the nation reading the opinion would know how badly the City of Los Angeles treats whistleblowers, at least based on the allegations of Marez. There are about sixty links to the Marez opinion on the internet. Barry believes that Chick and the City stiffened their resolve, that Barry must have some kind of stigmatizing punishment for obtaining the reversal of the Marez case in a published opinion, one directly impacting on her ability to practice law, like a suspension. And so Brandon Tady pushed for the stipulation, and trial was set in March 2010 just as Barry was trying to enforce a judgment of $92,363 she had won in February 2010 (unanimous jury verdict) on behalf of an impoverished African-American man recently released from prison. Her and her clients financial circumstances were perilous. So, Barry capitulated and signed. She continued to work on the enforcement of judgment and eventually received a substantial payment on April 1, 2010. At this point, the defendants have paid most of the judgment, except for $6,800. On April 1, 2010, they also paid all of the costs which was $6,000 plus. After remand in the Marez case, Mr. Paquette began sabotaging Barry. After a status conference right outside Judge Collins courtroom, in late 2010, Paquette was very aggressive toward Mr. Marez. In Barrys presence, he told Mr. Marez he was going to let the jury know he

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had no damages from losing his business. He said he intended to let the jury know about his sons criminal charges, which he said he would prove was the real source of his damages. Mr. Paquette made it clear he was going to get Mr. Marez. Although Paquette knew that Barry was not suspended from practice in the Ninth Circuit, he wrote a letter directly to Miranda telling her to terminate Barry, hire another attorney or go in pro per. Barry filed a complaint against Paquette with the disciplinary committee of the Ninth Circuit. The complaint was by mistake returned to her. She has spoken to an employee of the Ninth Circuit about the complaint and will mail it to him. III. CONCLUSION

The cases of Bar political prosecutions are numerous and often occur when attorneys represent unpopular clients who themselves are caught up in political prosecutions. This Court overturned the Hawaii Bar conviction of Sawyer involved in a Smith Act prosecution. It overturned the South Carolina Bar conviction of Edna Primus, an attorney who informed a woman who was involuntarily sterilized as a condition of remaining on public assistance that ACLU would be willing to represent her in a lawsuit. In re Primus, 436 U.S. 412, 422-425(1978) Representing women who are survivors of sexual harassment and of domestic violence is a difficult task. Their advocates often face hostile unreceptive jurists as Barry did in litigating Mardeusz and Elwood. The issues of harassment and violence against women and children are not left/right issues. Krause, an ACLU attorney who probably describes himself as a liberal, severely abused his daughter and deprived her mother of contact with her only child. A man who was an active Nazi and White Supremacist was recently shot to death by his ten year old son in Orange County California. It ends up that the father severely abused the boy. Men on

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both the left and right sides of the political spectrum sexually harass women, such as, Schwarzenegger, Strauss-Kahn, John Burton, OReilly, Bloomberg, Clinton. The Bar could not sit idly by when Kay won the 30.6 million dollar punitive damages for women grocery workers particularly since it caused embarrassment for the judge overseeing the case because the jurors were upset at the way he handled the case. Just as the Smith Act prosecutions and the ACLU and NAACP prosecutions raised controversy, attorneys defending the former and representing the latter were prosecuted by Bars. So it is with attorneys fighting a revolutionary battle: for the recognition that women have rights, rights that collide with the status quo of male domination, control, and often harassment and violence. It is clear from what Barry has reported in this petition, it is always a small town, even in a city the size of Los Angeles, when a local bar decides to prosecute. Often a professional courtesy more than a vindication of the public interest, Bar prosecutions become meanspirited, petty, and just plain gossipy. Only this Court can bring some semblance of sanity to this issue of bars imposing disciplinary prosecutions on federal practitioners. that this Court accept review. DATED: September 27, 2011 PATRICIA J. BARRY, Petitioner pro se 634 S. Spring St., Ste 823 Los Angeles, CA 90014 Phone: 213.995.0734 Barry respectfully requests

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