To: FRANCHISE TAX BOARD
PROTEST SECTION
MAIL STOP D-12
PO BOX 942867
SACRAMENTO CA 94267-5540
Declarant, Thomas Murrell Thornhill III, is a competent witness over the age of 18 years of age and does Solemnly state that:
1.a. I am a natural born, white Man, over the age of 18 years of age, living within the territorial boundaries of California.
1.b. I am not a trained or licensed Attorney; of necessity, I am acting within my right to defend my life, liberty, and property as set out in CALIFORNIA CONSTITUTION (2001), Article 1, Section 1 [from http://www.leginfo.ca.gov./.const/.article_1 (as of May 9, 2001)]:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.2. I had the occasion and the time to research the California law concerning the licensing requirements for persons wishing to engage in the business of being an attorney. I present the results of my research here.
3.a. California Constitution (2001), Article 6, Section 9, reads:
Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record.3.b. California Constitution, Article 6, Section 9, plainly reads that "admitted" and "licensed" are two separate, distinct actions and that "be a member of the State Bar" is a third action.
(in part, boldface emphasis added) West's Ann.Cal.Const. (2001), Art. 6, Sec. 9.
4.a. The earliest California law I have found which addresses the licensing of attorneys is transcribed from the volume Laws of California (1850-1853) [S. Garfielde and F. A. Snyder, Compliers, Press of the Franklin Printing House, (Boston, Mass., 1853)], CHAPTER XLIX, p. 205, "AN ACT concerning Attorneys and Counsellors at Law.--[Passed February 19, 1851.]", and reads:
SEC. 2. Every applicant for admission as Attorney and Counsellor shall produce satisfactory testimonials of good moral character, and undergo a strict examination, in open Court, as to his qualifications, by one of the Judges of the Supreme Court of this state.4.b. The original requirements set out above are continued in West's Ann.Cal.Bus. & Prof. Code (2001), §§ 6064 and 6067:
SEC. 3. If upon examination he be found duly qualified, the Court shall admit him as Attorney and Counsellor in all the Courts of this state, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the Clerk of the Court, which certificate shall be his license.
...
SEC. 5. Every person, on his admission, shall take an oath or affirmation to support the constitution of the United States and of the state, and to discharge the duties of Attorney and Counsellor to the best of his knowledge and ability. A certificate of such oath or affirmation shall be endorsed on the license.
(in part, emphasis added) Laws of California (1850-1853), Ch. XLIX, p. 205.
...the Supreme Court may admit such applicant as an attorney at law in all courts of this State and may direct an order to be entered upon its records to that effect. A certificate of admission thereupon shall be given to the applicant by the clerk of the court.4.c. West's Ann.Cal.Bus. & Prof. Code (2001), § 6064 (above) plainly states the requirement for "an attorney at law" to possess a "certificate of admission" given by the clerk of the Supreme Court.
(in part, emphasis added) West's Ann.Cal.Bus. & Prof. Code (2001), § 6064.Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any [sic] attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license.
(emphasis added) West's Ann.Cal.Bus. & Prof. Code (2001), § 6067.
4.d. West's Ann.Cal.Bus. & Prof. Code (2001), § 6067 (above) plainly states the dual mandatory requirement that "any [sic] attorney at law" shall take an oath and possess a "license" indorsed with a "certificate of the oath".
4.e. RULES REGULATING ADMISSION TO PRACTICE LAW IN CALIFORNIA, sets out the requirements for a person to complete prior to applying to be admitted by the Supreme Court and reads:
Section 1. To be eligible for certification by the Committee to the Supreme Court of California to practice law in California, all applicants must meet the following requirements:br> (a) Be of the age of at least 18 years;5.a. West's Ann.Cal.Bus. & Prof. Code (2001), § 6068 reads:
(b) Be of good moral character pursuant to the provisions of Rule X;
(c) Complete the general education requirements pursuant to the provisions of Rule VII prior to commencing the study of law;
(d) Register as a general applicant or attorney applicant;
(e) Complete the legal education requirements prescribed by Rule VII prior to taking the California Bar Examination;
(f) Qualify for and pass or establish exemption from the First-Year Law Students' Examination in accordance with the provisions of Rule VIII;
(g) Pass the California Bar Examination and such examination in professional responsibility or legal ethics as determined by the Committee and as specified in Rule VIII; and,
(h) Be in compliance with California court ordered child or family support obligations pursuant to Welfare and Institutions Code Section 11350.6.
(emphasis added) West's Ann.Cal.Rules of Court (2001), [Vol. 3, Pt. 3] Rule II.
It is the duty of an attorney to do all of the following:5.b. West's Ann.Cal.Bus. & Prof. Code (2001), § 6103 reads:
(a) To support the Constitution and laws of the United States and of this state.
(b) To maintain the respect due to the courts of justice and judicial officers.
(c) To counsel and maintain those actions, proceedings, or defenses only as appear to him or her legal or just,...
(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.
(in part, emphasis added) West's Ann.Cal.Bus. & Prof. Code (2001), § 6068.
...any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.5.c. Declarant makes the reasonable inference from the foregoing information that, in order to fulfill his/her duties as an attorney in accordance with West's Ann.Cal.Bus. & Prof.Code (2001), § 6068(a) (supra), a purported attorney must have in his/her possession, at minimum,: (1) a "certificate of admission" issued by the clerk of the California Supreme Court (treated as his/her "license"), (2) indorsed with his/her "certificate of the oath", and (3) evidence issued by the State Bar of California of his/her current membership status.
(in part, emphasis added) West's Ann.Cal.Bus. & Prof. Code (2001), § 6103.
6.a. According to The State Bar of California website, (http://www.calsb.org/mm/certstnd.htm [as of November 3, 2001] (set out verbatim)), a purported attorney can request a "certificate of standing" from the State Bar of California.
In order to receive a certificate of standing (required for admission to other jurisdictions) send a written request and a check for the correct amount payable to the State Bar of California to:6.b. It appears from the State Bar of California's own information that the acquisition by an attorney of his/her evidences of licensure, if he/she does not already have them, is neither unreasonably expensive nor unreasonably inconvenient.
State Bar of CaliforniaRequests for regular certificates must be made in writing and there is a fee of $25 for one to five certificates per attorney member payable in advance. Please include the bar number to ensure the certificate is for the correct person. The certificate can not be faxed, but will be mailed within 10 working days of receipt of the request.
Membership Records
180 Howard St.
San Francisco CA 94105If you are applying for admission to another state, you may be asked to provide information as to whether or not complaints or grievances have been filed against you. This information is not available at present. A regular certificate, not including information on complaints or grievances, may suffice.
Some jurisdictions also require a certificate from the Supreme Court of California. These may be obtained from the Supreme Court with a written request and a fee of $1.00. Send your request, payment and self addressed envelope to:
California Supreme Court
State Bldg.
350 McAllister St.
San Francisco CA 94102
6.c. Declarant has no reason to believe or to agree that a "certificate of standing" issued by the State Bar of California is functionally equivalent to, or identical with, a "certificate of admission" issued by the clerk of the Supreme Court and indorsed with an attorney's "certificate of the oath".
7.a. West's Ann.Cal.Bus. & Prof. Code (2001), § 6128 reads:
Every attorney is guilty of a misdemeanor who either:7.b. Declarant makes a reasonable inference that a person purporting to be licensed to practice law in California without having the evidences of said licensure available upon request of any party would be committing such "deceit or collusion" as is proscribed in West's Ann.Cal.Bus. & Prof. Code (2001), § 6128(a), (supra.
(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.
(b) Willfully delays his client's suit with a view to his own gain.
(c) Willfully receives any money or allowance for or on account of any money which he has not laid out or become answerable for.
(in part, emphasis added) West's Ann.Cal.Bus. & Prof. Code (2001), § 6128.
8. The California Supreme Court has held:
a. It [the right to practice law] is a mere statutory privilege, not even rising to the dignity of an office, except in a very limited sense, as we have already shown. This privilege is, by the statute granting it, extended to all persons who comply with certain conditions. Before the passage of this act [requiring an oath of loyalty to the Union during the Civil War], the conditions were that he be a white male citizen, twenty-one years of age, of good moral charcter, possess the necessary qualifications of learning and ability, procure a license from the Court to practice, and take the oath prescribed by the law. This act does but change the character and form of one of the former conditions, and requires the oath to be taken in the amended form, upon the noncompliance with which he is prohibited from practicing. It is not a crime for him to decline to comply with this new condition, by refusing to take the oath. The taking of it is now made a prerequisite to the exercise of the privilege. If the effect of his refusal is to exclude him from the practice, it is a result caused by his own voluntary conduct. In no sense is it a "punishment for crime," for the refusal to take the oath is not made a crime. A person may thus refuse who has never been guilty of any treasonable act, and has no intentions of that kind; and if he is prevented from practicing, it is by his own voluntary course. ... We do not see how this conclusion is to be avoided, unless it can be shown that traitors in act and intention have a constitutional right to practice law. ...[pp. 321-322.]9.a. West's Ann.Cal.Bus. & Prof. Code (2001), § 6126 reads:
The right [to practice law] is subject to the condition that the attorney shall possess a blameless moral character, and it is forfeited upon a breach of that condition. The public have a right to demand that no person shall be permitted to aid in the administration of justice whose character is tainted with dishonesty, corruption, crime, and, we will add, disloyalty, or treasonable acts. And his name will be stricken from the roll by the Court, by a summary proceeding, in such cases, whether provided for by statute or not, as it is a duty which the Court owes to the public....
The practice of the law is a privilege to which the Legislature may attach such conditions as it may deem proper, and a breach of the conditions is a forfeiture of the right.... [pp. 325-326.]
We have carefully considered the constitutional objections to this law, and we see nothing in the Constitutiion of this State probibiting [sic] the Legislature from requiring public officers, or those exercising special privileges, like attorneys at law, to take an expurgatory oath of the character of that prescribed by this act, and it is clearly within their general legislative powers, unless prohibited. ... The statute substantially makes the refusal to take the oath operate as a voluntary withdrawal from the profession, leaving it open for the attorney to be readmitted at any time by taking the oath, and thus complying with the new condition upon which that right depends. [p. 327] (information in square brackets added, emphasis added) Cohen v. Wright (1863), 22 Cal. 293, 321-327.b. Attorneys must possess good moral character. (Bus. & Prof. Code, §§ 6060, subd. (b), 6062, subd. (b); seeid, § 6064. Good moral character includes traits of "honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process." (Rules of Admission, Rule X, § 1.) Persons of good moral character also do not commit acts or crimes involving moral turpitude--a concept that embraces a wide range of deceitful and depraved behavior. (See In re Strick (1983) 34 Cal.3d 891, 901-903 [196 Cal.Rptr. 509, 671 P.2d 1251]; In re Fahey (1973) 8 Cal.3d 842, 849 [106 Cal.Rptr. 313, 505 P.2d 1369, 63 A.L.R.3d 465]; Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 452 [55 Cal.Rptr. 228, 421 P.2d 76]. In re Gossage (2000), 23 Cal.4th 1080, 1095, 99 Cal.Rptr.2d 130, 5 P.3d 186.
(a) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, is guilty of a misdemeanor.9.b. West's Ann.Cal.Bus. & Prof. Code (2001), § 6127 reads:
(b) Any person who has been involuntarily enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter advertises or hold himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or county jail. However, any person who has been involuntarily enrolled as an inactive member of the State Bar pursuant to paragraph (1) of subdivision (e) of Section 6007 and who knowingly thereafter advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or county jail.
(in part, emphasis added) West's Ann.Cal.Bus. & Prof. Code (2001), § 6126.
The following acts or omissions in respect to the practice of law are contempts of the authority of the courts:9.c. West's Ann.Cal.Bus. & Prof. Code (2001), § 16240 reads:
(a) Assuming to be an officer or attorney of a court and acting as such, without authority.
(b) Advertising or holding oneself out as practicing or as entitled to practice law or otherwise practicing law in any court, without being an active member of the State Bar.
Proceedings to adjudge a person in contempt of court under this section are to be taken in accordance with the provisions of Title V of Part III of the Code of Civil Procedure. [(fnt) 1: Code of Civil Procedure § 1209 et seq.]
West's Ann.Cal.Bus. & Prof. Code (2001), § 6127.
Every person who practices, offers to practice, or advertises any business, trade, profession, occupation, or calling, or who uses any title, sign, initials, card, or device to indicate that he or she is qualified to practice any business, trade, profession, occupation, or calling for which a license, registration, or certificate is required by any law of this state, without holding a current and valid license, registration, or certificate as prescribed by law, is guilty of a misdemeanor.10.a. West's Ann.Cal.Penal Code (2001), § 837 reads:
West's Ann.Cal.Bus. & Prof. Code (2001), § 16240.
A private person may arrest another:10.b. A California appellate court has held:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
West's Ann.Cal.Penal Code (2001), § 837.
A private person may arrest another for "a public offense committed or attempted in his presence" (Pen. Code, § 837). The term "public offense" includes misdemeanors (Pen. Code, §§ 15, 17; Burks v. United States, 287 F.2d 117; People v. Sjosten, 262 Cal.App.2d 539, 543 [68 Cal.Rptr. 832]) and the person making the arrest may summons others to aid him in the arrest (Pen. Code, § 839). People v. Campell (1961), 27 Cal.App.3d 849, 853-854, 104 Cal.Rptr. 118.11.a. Declarant makes a reasonable inference from the foregoing information that any person claiming to be a licensed attorney in California who should refuse, fail, or be unable to produce, upon the demand of any client, any potential client, or any adverse party, his/her Supreme Court "certificate of admission" indorsed with his/her "certificate of the oath" together with his/her "certificate of standing" from the State Bar of California, would be in violation of the Constitution and the statutes of California set out above and would agree to forfeit his/her privilege of practicing law.
11.b. Declarant knows of no legal excuse/exemption for a person purporting to be a licensed attorney without tangible evidence of such status to not be subject to: (1) summary sanctions, suspension, and/or disbarment in accordance with Bus. & Prof. Code, § 6103; (2) citizen's arrest (pursuant to Pen. Code, § 837) for violation of Bus. & Prof. Code, § 6126 in a citizen's presence; and (3) the penalties provided in Bus. & Prof. Code, §§ 6126 and 6167.
12. While I would regret having to help such a purported attorney receive the known and reasonably foreseeable legal consequences of his/her actions, I will do my best to comply with the statutes of California and to ensure that each purported attorney I have to "do business with" does so as well.
I certify under the laws of the State of California that the foregoing is true and correct.
Dated: _______________________________________
At: __________________________________________
_______________________________________________
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