kanBARoo court

Interlude 24. What would poor, helpless Westlaw and Lexis do without the Utah State Bar's solicitude?

2012-01-05T00:17:00.000-08:00

Some law firms require that student law clerks misappropriate their academic Westlaw and Lexis accounts for business use, and the Utah State Bar has issued an opinion condemning this theft as violating professional ethics. (HT: Legal Skills Prof Blog.) But such misappropriation isn’t new, and it isn’t confined to Utah. Why was any state-bar response to this scandalous practice so delayed? Why haven’t other state bars acted? Why has the Utah Bar issued only a warning? The Utah State Bar opinion answers: while the state bars are recognizing, only now, that these hirers commit disciplinable offenses, the state bar censures them for the wrong reasons. The Utah Bar’s reasoning showcases state-bar authoritarianism: fawning over the powerful, with only omissive contempt for the weak.

The criminal law on their side, Westlaw and Lexis can defend their commercial interests without the state bar’s help. The research services have acquiesced because they find advantage in the law firms’ unacknowledged use of student accounts—another way to offer a free trial. The Utah opinion is indifferent to the truly despicable. The students are offered clerking jobs, then subjected to a bait and switch. The firm asks for their time, then demands their souls. The state bars never wax indignant about deceitful acts and exploitative practices victimizing law clerks and associate attorneys.

93rd Installment. Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment

2011-12-09T01:20:00.000-08:00

Three years ago, the California State Bar’s Office of the Chief Trial Counsel became the state-bar establishment’s laughing stock when it had to admit that during an eight-year period it lost $675,000 to a single thieving clerk. Today, the Bar Court takes its turn at displaying ineptitude that will make the state-bar establishments throughout the country cringe. The State Bar Court Hearing Department, the nefarious Judge Richard A. Honn presiding, reversed the State Bar Board of Bar Examiners to allow the fraud Stephen A. Glass to be admitted to the bar. Judge Honn was affirmed by a 2 – 1 vote in the Review Department, but the California Supreme Court will hear the case on writ of review to decide whether Glass presented sufficient evidence to adjudge him rehabilitated.

Glass’s application is a joke, and the Supreme Court will reverse the Review Department. (Jack Shafer sets out the facts of the case in a piece I recommend.) Glass wrote for The New Republic news magazine, which fired him in 1998 after he had fabricated facts for more than forty articles, deceiving a mass readership by lying to his editor and submitting manufactured evidence to his fact checkers to validate his content. His case for admission in California—New York rejected him—consisted of two parts: he explained the origin of his lying ways by claiming his parents were harsh and demanding, and he vouchsafed his present moral character with 22 character witnesses. His tales about his parents bending the twig are fraught with obvious problems regarding the relevance of the psychological speculation and the credibility of a liar, and record evidence rebuts his rehabilitation. Glass hid half his fraudulent articles from the New York State Bar; he claimed he had corresponded with victims of his libels years before he did in fact; and he lacked compunction about continuing to benefit for years from his ill-gotten gains, even profiting from a novel retelling his adventures in fraud.

I’m unconcerned here with Glass’s fate, concerned only with what the State Bar Court’s findings reveal about its workings. Why were Judge Honn and two judges on the Review Department panel taken in by an obvious psychopath, his schmaltzy childhood stories, and his demonstrated ability to manipulate benefactors—like his character witnesses?

The first reason is the Bar Court’s delight in spectacles of feigned contrition. Glass staged a grand spectacle, not only his huge witness list, but also his groveling before the court. Trained to administer “discipline” by humiliation, Honn and company found Glass’s obsequiousness irresistible.

The second reason Glass could dupe the Bar Court is its prejudice favoring large law firms. Glass works for a highly capitalized plaintiffs' firm, Carpenter, Zuckerman & Rowley, which is rich enough to take on the largest defense firms and is, for practical purposes, in their league. The State Bar proved it would not hold big law accountable when Girardi and Lack escaped any State Bar censure after the Ninth Circuit Court of Appeal had found malfeasance.

The third reason is that the California State Bar, due to its commitment to political correctness, will treat homosexual petitioners and respondents capriciously. Sometimes, as here, the court can’t resist a gay sob story; whereas in other cases, such as Tore B. Dahlin’s, it penalizes excessively. Moralism, hyper-emotionality, and authoritarianism combine to make a measured response to homosexual petitioners and respondents impossible.

You didn’t know that Glass was homosexual? Neither did most others if they hadn’t read the novel or seen the movie, but Glass’s sexual orientation is relevant—only because he put the etiology of his conduct disorder at issue. Judge Honn avoided drawing connections, despite Glass’s childhood gripes’ obvious relationship, for example, his unpopularity in school and his unease when playing the husband's role in a childhood skit. Judge Honn’s psycho-babble, combined with Honn’s avoidance of themes that offend political correctness or contradict Glass’s personal narrative, show the State Bar Court is incapable of fulfilling its most rudimentary obligation: excluding psychopaths from the profession.

92nd Installment. Ethics of Ghost Blogging

2011-11-25T13:00:00.000-08:00

Should the state bars regulate law blogs as advertisements? You might think that advocates of blog regulation would classify blogging as a form of advertising, but they don’t urge this classification, one reason being that the main target of their regulatory ambitions is the authorship of blog postings, whereas nobody contends law firms must write their own ads.

The criticisms of ghost blogging conceive of a law blog as showcasing the attorney’s knowledge, the reverse of the concerns about ads. The ABA Model Code of Professional Responsibility EC 2-10 directs attorneys to avoid “undue emphasis upon style and advertising stratagems which serve to hinder rather than to facilitate intelligent selection of counsel,” but as described by ghost-blogging opponents, blogging is an advertising stratagem involving a sophisticated form of bragging. “Our knowledge is our stock in trade. If you believe that I know more because you read it on my blog and I, in fact, did not write that blog, I am deceiving you.” (Legal Ethics Forum, Comment by Charles M. Rowland II.)

The fear ghost-blogging’s opponents harbor is that an attorney lacking knowledge of an area of law will deceive clients regarding the hirer’s lawyerly competence. While various obvious measures could prevent such deceit, to see this as a significant threat is to misapprehend the state of the legal market. There simply aren’t many, if any, professional bloggers with the legal knowledge that would impress clients, yet with the willingness to work for the pittance a law firm pays a blogger.

Deceit about authorship is obviously unethical, and whether any instance of ghost blogging is deceitful is a question of fact; this much is platitudinous. The interesting question is why the ghost-blogging opponents worry about what’s so unlikely: what do they really fear? Not that bloggers will embellish the limited skills of some attorneys, but that attorneys who blog—as ghost-blogging’s opponents often do—won’t receive the recognition due them. They don’t want clients saying, “That sounds good, but everyone knows an attorney never authors his own blog.” They don’t want their blogs discounted as signals of their competence. Although law-competent ghost blogging is a chimera, a cynical public is receptive to that meme.

Regulatory support for authentic attorney blogging is a good idea, since allowing the public to rely on a signed blog as a sort of work sample would be a positive development for the profession. But the profession must confront two problems. The first concerns the definition of advertising, which the Model Code doesn’t define and the California Rules of Professional Conduct defines as communication “primarily directed to seeking professional employment primarily for pecuniary gain transmitted to the general public ….” (Rule 1-400(F)(12).) Under this definition, a blog is probably an advertisement, and law-bloggers’ subtle sales pitch is, strictly speaking, illegal—due to its being a style-based advertising strategy—under the Model Code's persuasive authority.

Until the legitimacy of blogs is officially recognized, the law menaces blogging attorneys. Ghost-blogging opponent and prominent member of the “respondents’ bar” David Cameron Carr states, “So far California's discipline system is focusing its limited resources on more egregious misrepresentations than ghost blogging.” Measures that would favorably shape the profession are never a high state-bar priority, and ghost-blogging issues are bound to be especially low priority, since ambiguity enhances the state-bar’s power.

The second problem the profession must confront is the over-reaching of blogging attorneys, who are too ready to overkill by banning ghost blogging, deceptive or not, to improve their competitive position.

Interlude 23. War criminal Jay Bybee purchased exoneration

2011-11-07T23:58:00.000-08:00

The two lawyers who legally justified water-boarding—denying its character as torture—were John Yoo and his Department of Justice supervisor, Jay Bybee. Yoo subsequently landed a plum job as law professor at the University of California, Berkeley; Bybee, an even more plum one, life appointment as judge on the United States Ninth Circuit Court of Appeals. The attention of kanBARoo court previously focused on Yoo, who, as the direct perpetrator, was, if not more culpable, at least more obviously so. But Bybee’s recent mandatory disclosure that he received $3.2 million in legal services, contributed gratuitously by the giant international law firm Latham & Watkins, raises new issues.

The official ethicists find this huge gift troubling but hard to criticize. The obvious worry is that it will bias Bybee to favor parties Latham represents, but Bybee, so far, has reportedly recused himself from cases contested through the giant-firm’s offices. Neither the firm, in offering the gift, nor Bybee, in accepting it, broke any official ethical rule.

But the ethicists’ perception of Bybee as innocent speaks primarily to the ethical-rules’ bias and ethicists’ gullibility. A giant law firm is, in practice, a corporate entity, serving the financial interests of its owners, the equity partners. The forum of its intervention being an ethics investigation, Latham’s efforts lacked the public-relations appeal of a highly visible case. What’s in it for Latham & Watkins?

Bybee may have recused himself, but he still has not conducted himself as proper ethical rules would require, as he failed to commit himself to any definite continuation of his self-recusal policy. By not recusing himself permanently from cases involving Latham & Watkins, he tacitly threatens any party litigating against a Latham client with the possibility that Judge Bybee will have stopped recusing himself by the time its case is appealed. His temporizing stance subtly alters the balance of power in favor of Latham clients, a bias, when iterated many times over, may substantially benefit Latham & Watkins. Any rational settlement negotiator for an opposing party will need to take into account the possibility that this case will be heard on appeal after Bybee has stopped recusing himself.

Interlude 22. Against routine public discipline

2011-09-28T16:50:00.000-07:00

The consensus among state-bar ethicists holds that most disciplinary actions should be publicly accessible. The ethicists fail to recognize that their claims of the public’s right to know contradict their rhetoric about discipline’s public-protective role; if public protection were really what they want, ethicists would advocate imposing discipline at levels where the likelihood that an attorney will re-offend equals the likelihood that an undisciplined attorney will offend. This equilibrium would render publishing discipline records redundant and self-defeating. (To expose this muddle, I momentarily put aside my many objections to the ethical codes’ content.)

The likelihood of re-offense—the recidivism rate—should be crucial information for ethicists who believe public protection is paramount, because a rate higher for repeat offenses than for first offenses exposes the public to exceptional risk when attorneys return to practice. If they return unrehabilitated attorneys, the bars can hardly blame the public for its distrust! A paramount public-protection purpose, then, would impel the bars to discipline more severely—or if no level of discipline can neutralize disciplined respondents, to abolish graded discipline, disbarring any offending attorney. A recidivism rate, on the other hand, lower than the first-offense rate would mean that disciplined attorneys are overdeterred, because they're penalized too severely. Attorneys cowed into subservience pose another risk to clients: picking a blunted instrument.

The bars justify publicizing discipline cases based on the public’s right to know about measures bearing on attorney qualifications, but if they disciplined for public protection, they would rehabilitate fully or disbar. But then, the public would have no interest in knowing an attorney’s discipline history. Publishing and posting the identities of disciplined attorneys, in fact, would oppose the public interest; these practices create disparities in effectiveness between disciplined and undisciplined practitioners, since not just the public, but judges too, access public information.

Who knows the recidivism rates for disciplined attorneys? Surely not the state bars. Where are the state-bar studies concerning suspended respondents’ recidivism? That absence opens another window on the state-bars’ incompetence: their unconcientious abdication of serious professional regulation. And where are the state-bar studies of suspended attorneys' subsequent careers? Studies would probably show that public access to discipline histories levels the nominal gradations. Again, who knows?

Interlude 21. Should the Legal Profession Be Self-Regulating (with emphasis on California)

2011-09-22T14:32:00.000-07:00

See Juridical Coherence, 12.0 Should the law profession be self-regulating? (with emphasis on California)

91st Installment. Raw deal on new Cal. State Bar Court Rules of Procedure

2011-08-18T10:14:00.001-07:00

Shortened time and attorneys’ fear of the State Bar limited public comment on the Rules of Procedure revisions to a critical handful, the State Bar having maintained, with only apparent persuasive success, that the new rules—in light of the rights afforded other occupations—are fair and proper for attorneys. But the new rules degrade attorneys’ procedural and even substantive rights, in desperate violation of California law, as the State Bar struggles to handle its fourteen-hundred-case backlog. The rules’ most important changes concern discovery rights, rules of evidence at trial, and bases for disbarment, each change disadvantaging State Bar respondents, not only compared to the old Rules of Procedure but also to the protections other professionals obtain in California, as well as to protections due attorneys in most other jurisdictions.

Illegality of the new Rules of Procedure.

The changes to the Rules of Procedure are illegal under California law. New rule 5.65 limits respondents’ discovery to admissible documentary evidence and to identifying information concerning persons knowledgeable about admissible evidence—without corresponding limitations applying to prosecutorial discovery, which can include respondent depositions. Thus, the Civil Discovery Act no longer governs attorney discipline, notwithstanding the California Supreme Court’s holding:

Since respondent acts herein as an instrument of the courts, its activities should be governed by those statutory principles which have been enacted as rules of procedure for all courts. By whatever name a disciplinary proceeding may be called, whether an action or special proceeding, it is in essence the initial stage of an action in court. It follows that the discovery act, in toto, is applicable thereto. (Brotsky v. State Bar of Cal. (1962) 57 Cal.2d 287, 301.)

The Civil Discovery Act authorizes discovery of nonprivileged information calculated to lead to admissible evidence, regardless of that information’s lack of direct relevance. (Cal. Code Civ. Proc., § 2017.010.)

While the old Rules of Procedure did not expressly authorize use of the Evidence Code (as they did the Civil Discovery Act), the Bar Court had accepted the California Evidence Code, and the same logic that applied the Discovery Act to the State Bar Court in Brotsky also prescribes the State Bar’s obedience to the Evidence Code. The new evidence provision, rule 5.104(C), admits any evidence customarily relied upon in serious matters, and rule 5.104(D) specifically admits hearsay evidence when it clarifies the implications of non-hearsay evidence.

The new default rule, rule 5.82(4), permits disbarment of any defaulting respondent, a truly desperate and draconian measure that imposes disbarment as the de facto punishment for default. The rule creates a new basis for disbarment, violating Business and Professions Code section 6078, which prohibits charges for nonstatutory causes. Rule 5.82(4) expedites the State Bar’s longstanding exploitation of alleged minor infractions as occasions for fishing expeditions, since the Office of the Chief Trial Counsel can now charge a Member with an offense warranting only an admonition yet impose disbarment if the respondent declines to cooperate with the investigation or submit to trial. Respondents' rights upon default have long been in a sorry state—all facts alleged in the Notice of Disciplinary Charges are deemed admitted, however nonexistent their basis—now, unspecified facts warranting disbarment are presumed.

Attorneys’ rights compared to other professions in California.

State Bar apologists have convinced some by arguing that the new rules equate with the protections other occupations receive under the Administrative Procedures Act (APA), but the argument ignores key facts about the APA. (Gov. Code, § 11340 et seq.) First, tethering to rights granted criminal defendants has narrowed the rights afforded under the APA. The Legislature passed the APA in 1945, before California established civil- and criminal-discovery procedures. California common law since expanded the rights under the APA in tandem with criminal procedure, but in 1990, the reactionary voter initiative Proposition 115 (styled the "Crime Victims Justice Reform Act") eliminated criminal defendants’ common-law rights by restricting their procedural rights to those provided by the U.S. Constitution. The California Supreme Court tempered the constitutional amendment, Article 1, section 28, and derivative changes to the Penal Code, but running scared in the aftermath of the 1986 recall of Chief Justice Bird and other liberal justices, the court ratified the initiative’s thrust: to interpret California criminal-defendants’ rights no more expansively than the U.S. Supreme Court interprets the U.S. Constitution’s Bill of Rights. The curtailment of independent state grounds extended even to allow the use of hearsay evidence in preliminary criminal hearings, where prosecutors establish probable cause. (This despite preservation of the California Constitution’s Article I, section 24: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”)

The second fact ignored by the State Bar’s propaganda for reducing attorney rights to the APA level is that other statutes supplement the APA as it applies to various occupations—rendering comparison between the Rules of Procedure and the bare APA inapposite. The chart below compares the new Rules of Procedure governing attorneys, the bare APA, and its application to other professions.

(Click to expand)

Most noteworthy is the protection of teachers threatened with discharge or suspension from government employment. California statutes provide teachers, as they did attorneys under the old Rules of Procedure, with the discovery rights of civil litigants under the Discovery Act. As additional protection, an accused teacher is tried by a three-person panel that includes an adjudicator chosen by the respondent. Also included in the teachers’ panel, as in hearings under the APA generally, is an administrative-law judge from the Office of Administrative Hearings in the Department of General Services. (Gov. Code, § 11370.1.). Teachers need heightened protection comparable to attorneys because like attorneys, who may suffer retaliation when they represent unpopular or powerless clients, teachers may suffer it for what they teach. (Recall the Scopes trial.)

Doctors receive some heightened protection in their right to depose opponent expert witnesses, denied attorneys except by specific motion. Doctors don’t get the broad discovery rights contained in the Civil Discovery Act, but the results of applying most of the APA to the medical profession aren’t encouraging, even though doctors lack the special retaliation-related concerns of the inherently politicized professions, law and education. Medical delicensing hearings are notorious for their use by hospitals to axe unpopular physicians, whom administrators may resent precisely for their concern with quality care.

Even the rights of California attorneys compared to occupations governed by the bare APA are wanting. The APA provides for trial by an administrative-law judge, who is apt to be more impartial than a judge attached to the State Bar Court by serving in its Hearing or Review Departments. The impartiality of the hearing officer is, after all, the most important consideration in obtaining just outcomes. (Ward v. Village of Monroeville (1972) 409 U.S. 57, 59–60.) The unique right retained by California attorneys, to move for additional discovery, may actually benefit the prosecution because such motions must establish strict relevance—as perceived by the Hearing Department judge.

California attorneys’ rights compared to attorneys in other jurisdictions.

While the State Bar exaggerates attorney rights compared to California professions under the APA, it avoids comparison with attorney-discipline procedures in other jurisdictions. Fortunately, the New York State Bar Professional Discipline Committee recently (June 2009) studied the comparative issues. The New York report, among its other comparisons, examined how the U.S. jurisdictions compared on discovery and evidentiary rules. Regarding discovery, the New York study divided U.S. jurisdictions into three groups, finding that 8 states allowed almost no respondents’ discovery, 6 allowed some, and 35 allowed all or almost all discovery available to civil litigants. California now falls behind 70% of jurisdictions with regard to the discovery afforded attorneys in discipline cases. With regard to rules of evidence, 70% of jurisdictions (not the identical 70% allowing full discovery) apply nearly the same rules as in civil trials.

The California Bar has fallen behind the great majority of jurisdictions in respondent rights.

90th Installment. Behind the James Towery Ouster: California State Bar Gets Even Worse

2011-08-05T21:44:00.000-07:00

Nobody quite knows why James Towery—the replacement for ousted extremist Scott Drexel—resigned on July 1, one year into his term as chief trial counsel for the California State Bar. Publicly, Towery blamed the resignation on the logistics of his commute from his San Jose residence, but the subsequent firing of four managers by the State Bar’s executive director, Joseph Dunn, convinced even David Cameron Carr, leader of the State Bar defense establishment, that the so-called resignation—precipitated by the California Senate’s failure to confirm after eleven months—was the beginning of a purge.

Yes, but who comprise the factions? Immediately following Drexel’s ouster, kanBARoo court surmised that the State Bar defense establishment spearheaded it. But the Towery purge wasn’t the prosecutory bar’s revenge. At issue—what to do about the huge backlog created by Drexel’s excesses (as well as some of Towery’s in the foreclosure arena).

Towery’s contention with the State Bar’s political leadership centered on the new rules, effectuated in January 2011. In his public comment on the proposals, Towery—while pretending a general sympathy with the rules—opposed all the major proposed changes:

Eliminate most discovery from State Bar court proceedings
Remove the Evidence Code in disciplinary proceedings, replacing it with the rules prevailing in administrative courts
Automatically disbar defaulting respondents

Towery submitted (verbatim) the following criticisms in August 2010 after the Board of Governors allowed extra time for public comment to allow the new chief trial counsel to submit a response:

As for discovery, each party should continue to be allowed at least one deposition of a nonexpert witness and without court approval;
Unlimited depositions of expert witnesses;
Parties should be allowed to take depositions of out-of-state witnesses;
Parties should have the right to unlimited depositions in reinstatement and moral character cases;
As for the evidence standard, reliability and predictability of evidence is best served employing the high standards and safeguards of the Evidence Code;
The relaxed standard of evidence would permit parties to offer large quantities of hearsay testimony and documents
APA hearsay objections can be lodged but not ruled upon until just prior to submission;
Outside training for judges and OCTC counsel may help with the undue consumption of time pertaining to evidentiary objections.

But these comments don't address the backlog. Towery's alternative for cleaning it up might have been the "fire sale on settlements" disavowed by Executive Director Dunn, an alternative bound to be unpopular with the State Bar's prosecutory wing—and wildly popular with the State Bar defense establishment (the "respondent bar," who participate in deliberations.)

89A Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 2. Homophobia

2011-03-04T16:24:00.000-08:00

Any one of several initially plausible theories, ranging from the state-bar's incompetence to its viciousness, might explain the severity it inflicted on Dahlin.

The first theory, suggested by scattered state-bar commentary, is that Dahlin, in reality, was disbarred for associated conduct rather than, as ostensible, the commingling of funds. The bar court wrote vaguely of the general aroma of dishonesty surrounding the "misappropriation," and though only sporadically, it alleged certain specifics, most significantly accusing Dahlin of prematurely representing to a superior-court judge that he had distributed all trust funds. Now, if this allegation were true, the offense would be very serious misconduct, certainly involving moral turpitude. Dahlin not only would have lied to the court but, committing the perfidy of disloyal dishonesty, lied to thwart the court's efforts to protect his clients' rights.

This theory implicates the state-bar's incompetence because if what's alleged were true, the bar—basing its case on the wrong infraction and, consequently, driven to exaggeration to justify disbarment—would have demonstrated by practically ignoring the truly disbarrable acts of dishonesty and disloyalty that it fails to grasp even the concept of moral turpitude. In some ways, this rings true. To the state bar, the worst misconduct involves money—regardless of how slight the attorney's fault—simply because the state bar is the payer of last resort when client funds are misappropriated.

But the theory caricatures the incompetence of the state bar, which disbarred Richard Fine for a single alleged misrepresentation to a judge. Extreme caution in accepting the allegations that this theory relies on is warranted, due to the state bar's lack of credibility. Its allegations of misrepresentation should not be granted automatic credence, particularly when the findings omit Dahlin's counter-contentions. More likely, the bar court, which didn't quote Dahlin's language or the superior court's, lacked a case against Dahlin for dishonesty or disloyalty.

The second competing theory has Dahlin disbarred for challenging the state bar's authority. Dahlin thinks his insistence on redacting confidential information incurred the state bar's enmity, but redaction doesn't affront the prosecutor. To the contrary, the more onerously state-bar prosecutors can burden a respondent, the happier they are; this explains the absence of a page limit on pleadings and petitions. The state bar is delighted when the respondent insists on laboring harder, as it furthers the bar's war of attrition and realizes the bar's hope of exhausting respondent or his resources.

The last possibility is that the state bar's animus was personal: the prosecutors and judges disliked the man. Personal prejudices shape an unaccountable police agency free to implement them, but which of Dahlin's traits could make the entire bar apparatus hate him? To answer the question, you must know more about Dahlin, something easy enough to discover: Dahlin is gay and demonstratively so; colloquially, he's a flaming homosexual, and to prove it, he made a gay movie.

State-bar homophobia is ironic in that Lesbians predominate among its deputy trial counsel. (Our Prosecutrix, Melanie J. Lawrence, swaggered into the courtroom looking like a boy.) Ironic but not contradictory, as Lesbians, who reject men, tend to be most offended by those returning the favor.

Public knowledge of Dahlin's sexual deviance helps discern the source of the state-bar's animus, but how many respondents whose offensive traits aren't so public receive the spite of the unaccountable state bar, effecting all the prejudices inherent in a mentally aberrant clique?

89th Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 1. The disbarment

2011-02-16T10:57:00.000-08:00

Sentencing severity is rarely a hot kanBARoo court topic, since any public punishment is equally devastating, when the state bar feverishly universalizes knowledge of a Member’s punishment history, but Tore B. Dahlin’s disbarment is the rare illuminating severity case. Dahlin’s disbarment is exceptionally disproportionate to his offense, and his account of his prosecution exceeds demonstrating the state-bar’s capriciousness, to reveal the mainsprings of its viciousness.

In obedience to court orders, family-law attorney Dahlin opened two interest-bearing trust accounts holding approximately $70,000 and $60,000, but for reasons in dispute, he withdrew the money. Commingled or not, the funds were disbursed promptly, and if a client hadn't unwarrantedly complained to the bar, no one, not the bar, not the clients, would have known of any irregularity, because Dahlin’s handling of the funds was undetrimental. (The state bar alleges Dahlin delayed discharging client debts for six months, but no official pressure or complaint was required to release the funds.)

To measure the magnitude of Dahlin’s transgression, we must be clear on why the law requires attorneys to keep money in trust accounts: a private account risks the client’s funds if a hypothetical creditor levies on it. As the Supreme Court observed in Bernstein v. State Bar (1972) 6 Cal.3d 909, 916-7 [citing Peck v. State Bar (1932) 217 Cal. 47, 51]), keeping client funds in a private account potentially risks them, although the funds emerge unscathed,. But a moral gulf divides an attorney who, in this speculative sense, has jeopardized client funds from one who loses the client’s funds or even misses a disbursement deadline.

Essentially, Dahlin’s offense was commingling rather than misappropriation, as he never denied his clients access to their funds. The Supreme Court explained the distinction in Lawhorn v. State Bar (1987) 43 Cal.3d 1357—a matter matching Dahlin’s in seriousness—where, without depriving the client, respondent failed to keep client funds in trust. (Lawhorn’s offense was more severe than Dahlin’s in that a client was forced to complain to the state bar before Lawhorn released the funds, but on the other hand, Dahlin’s involved more money and two contemporaneous clients.) The Lawhorn court held, “We conclude that the case should be treated as one falling between wilful misappropriation and simple commingling.” Lawhorn was suspended for two years; so when the state bar initially agreed to suspend Dahlin for two years (a term Dahlin regards as fitting), it was agreeing with me on Dahlin’s degree of culpability.

The state bar initially treated Dahlin’s victimless transgression proportionately, but for reasons Dahlin never understood—and kanBARoo court will undertake to explain—the state bar escalated its punitiveness while it prosecuted Dahlin, who had initially reached an agreement with the bar prosecutor for a two-year suspension. When the bar assigned a new prosecutor to the case, Deputy Trial Counsel Oropeza, she disagreed with her predecessor, forcing Dahlin to accept a three-year suspension and stipulate misleadingly to facts implying he committed thievery. The forced confession, meanwhile, portrayed Dahlin so unfavorably that the judge rejected the plea agreement. The bar now sought disbarment, and Dahlin went from suspension for two years to rejection of his resignation with charges pending. The resignation route had been closed by a new rule requiring, if he was to exercise his erstwhile right to resign, a false confession the state bar could no longer extract. Forgone conclusion: Dahlin was “tried” and disbarred.

Even the bar court could understand that it had to justify the sentence’s severity, and it cited three California Supreme Court cases for its contention that disbarment is sometimes the appropriate punishment for a single act of misappropriation with mitigating factors. But Dahlin’s matter doesn’t come close.

The first case the bar court cited is In re Abbott (1977) 19 Cal.36 249, which the bar court summarized this way: “[T]aking of $29,500 showing of manic-depressive condition, prognosis uncertain.” The bar court omitted the small fact that Abbott had pleaded guilty to grand theft.

The second case cited by the California Bar is Chang v. State Bar (1989) 49 Cal.3d 114, which the bar court summarized, “An attorney misappropriated almost $7,900 from his law firm, coincident with his termination by that firm.” The full story. The attorney stole pretended legal fees from the trust fund, despite having assured the client that he provided the services as a courtesy.

The third cited case is Kaplan v. State Bar (1991) 52 Cal.3d 1067. The bar court’s précis: “An attorney with slightly over 11 years of practice and no prior record of discipline was disbarred for misappropriating approximately $29,000 in law firm funds over an 8-month period.” The reality. Respondent deposited 24 checks into his personal bank account (one offense?) and didn't intend to restore the money, which paid for his father’s medical expenses.

Unlike Dahlin, these attorneys couldn’t repay their clients. In partial contrast, the Lawhorn client received payment, but only after a client filed a complaint with the Bar. Whereas in full contrast, Dahlin’s clients suffered no inconvenience in accessing deposited funds.

Why was Dahlin disbarred for an offense worth a two-year suspension? Next Installment will examine why the state bar punished Dahlin so severely.

88th Installment. Did chief trial counsel take a bribe from Girardi and Lack?

2011-02-07T20:38:00.000-08:00

Circumstantial evidence raises reasonable suspicion that Thomas V. Girardi and Walter J. Lack bribed the new chief trial counsel to dismiss their matters. There's no better explanation, and these very wealthy lawyers have the means. The motive, too. The more successful your practice, the more you lose when the state bar destroys it.

For those who missed it, here’s the story, set in exotic Nicaragua:

Attorneys for plaintiff agricultural workers complaining of injury from Dole Food Company’s pesticides retained the highly successful law firms Girardi/Keese and Engstrom, Lipscomb & Lack, but the Nicaraguans sued Dole Food Corporation. Lack discovered the discrepancy and entreated the Nicaraguans to correct the name. They didn’t, and reminders of the omission constantly refreshed Lack’s memory, leaving no question that he approved a deceitful cover up of the error.

Lack and Girardi contracted to collect from the intended defendant in the United States and Venezuela, and in pursuit, Lack maintained an appeal where he argued falsely that the judgment named Company. His office doctored and misrepresented documents to prove the point. Lack balked at ending the frivolous litigation even after an appellate expert convinced Girardi.

The 9th Circuit U.S. Court of Appeals suspended Lack for six months and reprimanded Girardi—the penalties seem light because judicial sanctions are scaled down—after the court appointed respected ethicist Judge A. Wallace Tashima as Special Master. The high-stakes-gamble characterization in the first sentence of Judge Tashima’s summary provides the most insight: Girardi and Lack stood to profit immensely, but nobody—not even Judge Tashima—is telling the measure of the immensity.

In a high-stakes gamble to enforce a foreign Judgment of nearly a half billion dollars, Respondents initiated and directed years of litigation against Defendants. Respondents efforts went beyond the use of "questionable tactics" - they crossed the line to include the persistent use of known falsehoods. This litigation was based on three falsehoods: that Dole Food Company was named as a judgment debtor by a Nicaraguan court, that the Nicaraguan court corrected any mistakes it might have made regarding Dole Food Company in its judgment by the Writ of Execution, and that Respondents had submitted the corrected Writ of Execution to the state court and the federal district court. Respondents made these false representations knowingly, intentionally, and recklessly. Their actions vexatiously multiplied the proceedings at great expense to Defendants and required the Ninth Circuit to deal with a frivolous appeal.

The California State Bar refrained from its usual thuggery. It dismissed all charges, claiming that the 9th Circuit had sufficiently punished respondents, who were, in any event, innocent of intentional misconduct. Extreme differences from regular state-bar practices uniquely distinguish these matters:

First, deceiving the 9th Circuit is unquestionably “moral turpitude.” Lying to a tribunal, particularly for personal gain, is disbarrable, as Richard Fine discovered when disbarred for moral turpitude because of a single, trivial, and defensible technical misrepresentation.

Second, disciplinary tribunals mutually defer. Respondents thoroughly litigated their state of mind in proceedings presided over by the Special Master, famed ethicist A. Wallace Tashima; and Girardi and Lack’s lawyers were more skilled than the state-bar-defense establishment’s offerings. Is the tin-pot “chief trial counsel” conceited enough to reach a different conclusion?

Third, the state bar never ordinarily describes a respondent’s state of mind as intentional. The operative term is willful, stretched beyond recognition.

Fourth, punishment imposed by another tribunal never discharges respondent’s culpability. A felony conviction results in disbarment without ado, and the state bar doesn't subtract a contempt of court.

Nonpecuniary ties, connections, and favoritism can’t explain discrepancies so extreme; some disagree. One contrary theory speculates that Girardi’s associate Howard B. Miller, last year’s state-bar president, pulled strings for his boss. But a past occupant of that ceremonial office—even a current president—influencing the chief trial counsel is the tail wagging the dog.

Descent into thievery is the fate of blundering cops who are law unto themselves. For let’s be clear: nobody blames Lack and Girardi for using every resource to avoid the State Bar’s grip. Unlike the judges of the 9th Circuit, I don't grieve for the super-exploitive Dole Food Company, which, despite actual service, refused to appear as defendant and manipulatively complained for its due-process rights.

Let’s also be clear: the intelligent perspective isn’t for “disciplining” Girardi and Lack. Rather, the state bar should extend the courtesies afforded Girardi and Lack to all respondents.

87A Installment. Ohio bar: Collection agency for the banks—The Hassan Jonathan Griffin matter—Part 2. Should all lawyers be narrow-minded moralists?

2011-01-26T14:15:00.000-08:00

2nd in Hassan Jonathan Griffin series

While the State of Ohio is inconsistently harsh on lawyers, in its pluto-moralism, Griffin's prudential detractors are psychologically clueless. They pronounce that Griffin's financial incompetence disqualifies him for the law, and his weakness and passivity disenables him from intervention for others. But aggressiveness when fighting for others' rights, meekness and conflict-avoidance when asserting their own—for example, acquiescing to state-bar "discipline"—is emblematic of attorneys' character.

As to financial skill, numerous geniuses have handled their money unwisely, and a lawyer minority handles any; public defender Griffin doesn't. To insist Griffin's financial incompetence should disqualify him for all lawyerly endeavor forces a rigid and narrow template on bar admissions. (But we needn't go that far, as the Ohio bar neither sought nor obtained—besides Griffins failing scores on three state-bar exams—facts bearing on any skill.)

"Savvy businessman" as professional character template, with other narrow-minded attitudes, creates our non-diverse profession. When the state bars exclude candidate lawyers for want of financial skill and business shrewdness, they eliminate professional understanding of the plight of millions of debtor clients. Then, we're stuck with the likes of the Ohio Supreme Court justices, who consider debtors despicable shirkers of their "obligations."

Like the justices, we little understand hardship outside personal experience and much understand it within. A sympathetic rant by a co-editor of the blog Above the Law—the name expressing its mildly cynical anti-lawyerism—illustrates the point. Co-editor Elie Mystal voiced out-of-character sympathy because his suffering—no job prospects, no way to pay his student loan—is direr than Griffin's. When a friend queried how Elie, with his abysmal credit rating, could ever buy a house, Elie replied that landlords reluctantly take him as tenant. Personal experience shaped Elie's attitude toward school-loan debtors, but it touched only that narrow attitude. Since we sympathize with like ordeals, law needs broad diversity of experience, including poverty and debt.

Ethicist Brad Wendel, notably, opposed character and fitness clearances as early as 2007, when he decried them as irrelevant and obsolete, procedures debunked as "the fundamental error of attribution," the folly of explaining others' behavior—but not our own—as caused by stable character traits. Usually pressure of circumstance decides: typically, contrasting personalities behave the same in identical social contexts. The sagas of Elie Mystal and Hassan Jonathan Griffin instantiate the principle: their common "trait," planlessness, results from enduring the same raw deal.

87th Installment. Ohio bar: Collection agency for the banks—The Hassan Jonathan Griffin matter—Part 1. Business debts aren't moral obligations

2011-01-18T00:45:00.000-08:00

Question: What official process is still more capricious than a state-bar prosecution? Answer: A bar character and fitness evaluation in the State of Ohio. The Ohio bar denied Hassan Jonathan Griffin’s application because he couldn’t formulate a plan to discharge his $200,000 debt, incurred to finance his education. In California, the vague and open-ended character-and-fitness criteria threaten applicants' due process rights. (See for example, Hightower v. State Bar (1983) 34 Cal.3d 150) But Ohio proves that specificity is no automatic remedy. Ohio law expressly includes a candidate's financial mismanagement as ground for disapproval. (Ohio Gov.Bar R. I(11)(D)(3).) Griffin isn't the first case of the Ohio bar serving as a collection agency. In re Application of Manayan (2004) 102 Ohio St. 3d 109, the candidate's tax arrears contributed to denial. (See also another Ohio tax arrears case, In re Application of Carr-Williams (1992), 63 Ohio St.3d 752.) Ohio is serious about attorneys' personal finances. (In re Application of Dickens (2005) 106 Ohio St.3d 128 [financial responsibility is “critically important for lawyers”]; In re Application of Manayan (2004) 102 Ohio St. 3d 109 [“we expect applicants for admission to the Ohio bar and bar members to scrupulously honor all financial commitments”].)

The state-bar courts may be the only venue where Ohio courts pretend indebtedness creates an "obligation." Outside the bar courts, Ohio judges follow the contemporary attitude toward breach of contract. Like all U.S. jurisdictions but with more fanfare, the Ohio courts refuse to treat breach of contract as a morally offensive disregard for obligations: they refuse punitive damages to express moral opprobrium for contract breach. Ohio courts can be heard to quote Justice Oliver Wendell Holmes, Jr., that “[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it--and nothing else." (Holmes, The Path of the Law (1897) 10 Harv.L.Rev. 457, 462.) Non-performance of a business contract doesn't create a moral obligation, and repayment of debt is a contractual performance like any other. A loan is one variety of business deal, and like other varieties, it creates no moral obligation to perform.

Also, those rare jurists favoring punitive damages for bad-faith repudiation of a contract would refuse to create a moral obligation from Griffin’s indebtedness. (See for example, Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 774 - 784 [Bird, J., dissenting and concurring].) These morally nuanced judges advocate evaluating the parties' expectations as influenced by the social mores governing the same and similar transactions, and the Ohio Supreme Court considered neither. It ignored the student loans burdening many young lawyers, who have no idea how to repay. It also ignored how the bank bailouts affected our ethical sensibilities. After banks incurred an unsustainable debt with no plan for repayment, no prosecutions or even ignominy followed. Not just the banks. American government indebtedness has shifted ethical sensibilities concerning repaying loans. Having a huge debt with no idea of how to repay it accurately describes today's U.S. government.

Even where the breach is in bad faith, Ohio law, like the laws of all U.S. jurisdictions, doesn't punish—only compensates—breach of contract. Like all U.S. states except a couple (including California), Ohio consistently took this stance long before the sea change in American ethical sensibilities. Griffin’s breach of his student loan agreement, an ordinary business contract, doesn't need sophisticated justification: Griffin was unable to pay his student loan for the best of reasons. A contract, as Justice Holmes held, is only a prediction; who can blame Griffin for failing to predict the near collapse of the U.S. economy, when few economists succeeded. Bad luck, not just for him but also his creditors, who gambled on a better business outlook.

Next Installment. Should all lawyers be narrow-minded moralists?

86th Installment. Florida State Bar enforces “political correctness”—the Mitchell and Mooney matters

2011-01-07T18:29:00.000-08:00

In events many observers find unfathomable, the Florida State Bar disciplined two lawyers for trading e-mailed insults. What’s unfathomable to the observers is not, unfortunately, the Florida Bar’s disciplinary action but the attorneys’ conduct, whose frequency in general practice everyone underestimates. In this Installment, we’ll “fathom” both the Florida State Bar and its victims.

Comparing the severity of disciple imposed on each—10-day suspension for Kurt D. Mitchell but only a public reprimand for Nicholas F. Mooney—betrays its motive. What occurred between them is sometimes termed a “flame war”, an escalating exchange of insults, often attributed to the absence of the inhibitions direct contact would foster. The only significant difference between the two attorneys’ conduct consists in the political incorrectness of Mitchell’s mockery of Mooney’s handicapped offspring: While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces. Compare with Mooney’s strongest: Then check your children if they are even yours. Better check the garbage man that comes by your trailer to make sure they don't look like him.

To politically correct moralists, Mitchell’s comment, because it ridicules a specific “incorrect” human target, is tantamount to harming it. Moralistic political correctness habitually misidentifies the object of harm, and this confusion facilitates similar swindles, such as the practice of charging injury to client whenever the Bar is inconvenienced. Here, the Florida Bar took this justification full circle by shedding hypocritical crocodile tears for the attorneys’ clients.

The Florida Bar had no legal basis for this discipline. It invoked its freakish interpretation of “dishonesty,” an all-purpose charge when the state bar finds no chargeable offense or hungers to compound an existing charge. “Dishonesty” plays the same role in Florida as “moral turpitude” in California, and the verbiage reciting the state bar’s artless justification of this characterization is, expectedly, where the Bar sheds tears—because, you see, the clients expected diligent pursuit of their interests, instead of indulgence in such mischief! Harm to both attorneys’ opposed clients is almost inconceivable in adversarial settings, and the nonexistence of any proof of client harm proves clients are the Florida State Bar’s least worry. Both Mitchell and Mooney should appeal the culpability findings as a due-process deprivation, because of the absence of forewarning that insulting opposing counsel would constitute actionable “dishonesty,” a charge that, had it been applicable, would warrant much more severe discipline.

That’s due process under the Fifth Amendment (as applied to the states by the Fourteenth), but what about the First Amendment? Some less narrow-minded observers suggest that the Florida Bar punished Mitchell and Mooney for protected speech, but unfortunately, the U.S. Supreme Court refuses to afford First Amendment protection to invective; the doctrine of unprotected speech is why authoritarian “fighting words” laws pass muster. Although the fighting-words doctrine doesn’t apply when, as here, the parties utter them on their own property, the speech remains unprotected and targetable by profession codes.

The First Amendment protects rights beside speech. Commission of the supposed misconduct in the course of representing clients works in respondents’ favor if they proceed under the right to petition. Although the Florida Bar charged the two with dishonest conduct with clients, the charge prejudges their tactical effectiveness. Conceivably, the flaming was an effective strategy.

Relatively effective, that is. I wouldn't hire them, and their conduct illustrates a deep problem in the profession: incompetent, bullying attorneys. If this tactic was relatively successful, it was so because their repertoire contained no alternatives; attorneys incapable of legal sophistication resort to bullying, but intimidation requires that they can intimidate their opponents. With bullying the one tool in your box, you make do; at least you’re justifying your fees. It gets more interesting when two bully attorneys confront each other, because each, skills limited to bullying, can only escalate hostilities. If some 15% of attorneys belong to this genus, then maybe two or three percent of cases include similarly escalating affronts.

I little doubt Mitchell and Mooney are both bully attorneys, whose limitations damage the profession. Mitchell and Mooney showed that their conduct was tactical: although their insults escalated, they were never out of control. They stayed on the right side of the line as they understood it, never, for instance, using profanity or obscenity. Each—sharing the insults with coworkers and bosses—thought his conduct was proper. Was it? Yes and no: this case isn’t about incompetent, bully lawyers. The state bars don’t intend to address that problem, because state-bar prosecutors are of precisely this type.

85th Installment. California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence

2010-12-04T14:18:00.000-08:00

kanBARoo court differs from most other judicial-system criticisms in declining to demand more prosecutions. Often critics respond to inequities in justice's administration by demanding prosecutions of the truly guilty, not just relief for the unjustly prosecuted. No doubt, one might derive satisfaction from reporting judges or gloating over their comeuppance, but this satisfaction comes at the expense of consistency and principle: advocacy of prosecution by a corrupt, oppressive, or incompetent agency contradicts the intended defense of due process. Only perpetration of crimes so great they overshadow the State Bar's defects—John Yoo is the only example that comes to mind—justifies supporting (never advocating!) state-bar prosecutions. kanBARoo court doesn't advocate prosecution even in the extreme case of Ronald N. Gottschalk or Melanie J. Lawrence. Nor did I report Lawrence's criminal misconduct to the State Bar as some advised; I refused even to report Kim and company to the police, as the state's prosecutorial authority differs from that of the state bar in its greater competence, not greater inclination to justice. Principled opponents of authoritarian oppression don't beseech the oppressive authorities!

Therefore, readers shouldn't interpret the following critique of failure to prosecute prosecutors as a demand for their prosecution. To avoid the misunderstanding of an important principle, I emphasize this caveat, even at the expense of the main message; but principles don't preclude publicizing and analyzing failures to prosecute, omissions laying bare the state-bars' mainsprings. With that caveat, I proceed with clear conscience to describe the California State Bar's astounding failure to prosecute prosecutors

Recently, the Northern California Innocence Project released a study of prosecutor misconduct staggering in demonstrating prosecutory bias. One fact stands out in this report: over the past decade, the State Bar has disciplined only six prosecutors for misconduct in prosecution. (Hat Tip to The Crime Report.) Business & Professions Code sections 6086.7 and 6086.8, subdivision (a), require judges to report misconduct that affects trial outcome, and mandatory "reported events" by judges produced approximately one thousand reports over the period studied, but of these, only six led to state-bar sanctions of prosecutors in criminal cases. For most practical purposes, we can justly say the California State Bar refuses to prosecute any prosecutor. (The only exception is the recent prosecution of four prosecutors, comprising the bulk of the six. This prosecution resulted from a power-struggle within the state bar that led to Chief Trial Counsel Scott Drexel's ouster and represented a crude attempt to appease the discontented state-bar defense establishment.)

The Mark Sodersten case shows how this refusal plays out, how the free pass given prosecutors is intentional rather than (somehow) merely negligent. Sodersten is one of the great success stories of the Northern California Innocence Project, which seeks exoneration for victims of the criminal-justice system who didn't commit the crimes charged. The California Court of Appeal freed Sodersten based on evidence the Innocence Project discovered proving he was the victim of withholding evidence by the prosecutor, who himself had interviewed the potentially exonerating witness, so there was no legitimate question about the concealment's willfulness. This prosecutor was a real fiend; can you imagine asking for the death penalty for a defendant who you know was convicted on falsified evidence? Since the evidence was exonerating, one can go so far as to say this prosecutor demanded the death penalty for someone he knew was innocent.

The California State Bar couldn't avoid opening an investigation of Philip Cline, then a Tulare County assistant district attorney, but it refused to find culpability, claiming insufficiency of evidence, a deficiency deterring the State Bar in no other prosecution. The free pass allowed this prosecutor to flourish: this attempted murderer is now district attorney for Tulare County.

Sodersten shows the California State Bar isn't merely lax about prosecuting prosecutors but actively resists finding prosecutors guilty. Opponents of the State Bar establishment have an interest in knowing why. One theory, advanced by the loyal opposition of the California State Bar establishment, the Association of Discipline Defense Counsel and its leader, David Cameron Carr. Carr claims that the state bar is really a consumer-protection agency, rather than an enforcer of ethical principles, implying that the disciplinary mechanism within government agencies adequately protects the public. The theory can't explain the intensity of resistance to prosecuting prosecutors; it explains at most a lack of emphasis on such prosecutions. Carr would have it that the State Bar doesn't consider prosecutorial misconduct important enough to prosecute, a premise that doesn't explain outright refusal to prosecute. The data also refute a theory I proposed, that the State Bar is unconcerned with prosecuting "government attorneys" because there's no money in it, the State Bar having an interest in the trust accounts of civil attorneys, as it retains the interest on these accounts. This too explains only lack of concern, not determined avoidance.

"Government lawyers" is a misleading abstraction. I haven't seen figures on prosecutions of other "government attorneys;" the record concerning public defenders would be particularly interesting. But even if the prosecution rates are low across the board for lawyers working for government, this 1) still doesn't explain active resistance to prosecution of prosecutors; and 2) doesn't explain why common sense and the obvious need for discipline for misconduct of the sort Philip Cline perpetrated doesn't compel making an exception to any rule exempting "government lawyers," since the imperatives that apply to prosecutors don't apply to other classes of "government lawyers." An unethical monster like Philip Cline is a moral threat whether or not he leaves government service. No client should trust such a creature; none should have to risk association with him.

Prosecutorial solidarity is the only tenable explanation I find for the State Bar's avid refusal to prosecute prosecutors. The State Bar, after all, effectively is composed of prosecutors, and the boundary between prosecutors in general criminal practice and State Bar "trial counsel" is porous, the State Bar the refuge of the most incompetent of the lot, not necessarily the most vile. The prosecutors in the State Bar have a stake in not seeing other prosecutors prosecuted because, in general, prosecutors often engage in misconduct, particularly State Bar prosecutors. While the State Bar has no shortage of hypocrisy, it knows its self-interest. Once prosecution of prosecutors becomes common, why wouldn't a public outcry demand prosecution of "trial counsel"? By all indications, serious misconduct by these bar prosecutors is a common occurrence, even the norm. Every prosecutor has an interest in such misconduct getting a free pass.

The evidence of State Bar misconduct is rife throughout its cases, but the most rigorously proven instance happens to have occurred in my State Bar case, where "deputy trial counsel" Melanie J. Lawrence actually destroyed documents to obtain dismissal of my petition for review. Precisely because the evidence is circumstantial, hence not dependent on testimony, the proof of her misconduct is airtight. Without reviewing that evidence, readers can verify this tolerance for misconduct by bar counsel all the way from the nefarious Judge Honn to an indifferent California Supreme Court. Lawrence and the attorneys representing the state bar consistently refused to address the charges of misconduct; with proof so clear, they determined to stonewall. While my briefs pounded away on the subject, the State Bar's briefs ignored my allegations. They needed to craft no arguments; they simply pretended my claims were absent. Subsequently, no investigation was opened, despite the proof I briefed.

While Philip Cline is district attorney of Tulare County, Melanie J. Lawrence continues in employment by the State Bar. The State Bar doesn't prosecute prosecutors for misconduct because, out of self-interest and empathy, it favors such misconduct.

84th Installment. The Inherent Untruthfulness of CYA Letters

2010-11-18T17:25:00.000-08:00

A CYA (cover your ass) letter is one whose purpose is to rebut client's blame in advance when acknowledging the motive would defeat the purpose. (See 75th Installment, The Torture Memos & the Tortured Legal Ethics Justifying "CYA Letters," for elaboration.) Ethicists mostly ignore CYA letters, an ensconced form of professional untruthfulness.

After I commented that professional protectiveness toward CYA letters stymied the prosecution of John Yoo, Monroe Freedman, who posts at the Legal Ethics Forum, tried to open a discussion of CYA letters. Here's the example he posted:

In 1971, the Nixon administration arrested 13,000 people, virtually all of whom had come to DC to peacefully protest the Vietnam War. I was in charge of ACLU’s litigation effort on their behalf.

One group of clients consisted of 2400 people who had been arrested for disorderly conduct, but with no probably [sic] cause and with no record made by the arresting officers of the circumstances of the arrests. (In fact, one of the group was a White House secretary who had been arrested while walking to work.) The arrestees were required to post collateral and given court dates for trials. Many did not appear because they had come from distant places. In those cases, the government moved the court to forfeit their collateral and enter a conviction. Whenever a defendant did appear, however, he or she was met at the courtroom door by a prosecutor who gave the defendant a green card indicating that the case had been dismissed and informing them how to get their collateral refunded.

Monroe describes his CYA letter:

Thereafter, with reference to the MayDay “arrests,” some members of the class asked me whether they had to answer yes if asked on job, graduate school, or bar applications whether they had ever been arrested. I told them that, in my opinion, they could properly answer no. (For those too young to recall, there were people who would be strongly hostile to anti-war demonstrators, peaceable or not; think Swift Boat attacks on John Kerry.) However, I cautioned them that a letter to that effect from me would not be an immunity bath, although it would at least provide evidence of their good faith if they were ever challenged on the issue. I also pointed out that a lie on an application might well be considered a more serious matter than the fact of an arrest, and that someone else might disagree with me regarding whether they had lied. In those cases in which people requested the letter (all such cases, as I recall), I wrote it for them. However, I did not include my cautions in the letters I simply stated the facts and my opinion. [Emphasis added.]

Momentarily disoriented by my substantive agreement with Monroe's cause—I'm less sympathetic to some of his other causes—I seriously erred in my comment (while the other commenters missed the point). An unfortunate error of mine, as Monroe's letter contains the fundamental CYA disclaimer, the basic formula rendering CYA letters a dishonest practice. My comment is useful here because it illustrates the fallacy committed by attorneys who think CYA letters benign. Mistakenly exculpating Monroe's letter, I posted:

The equivocal caveat in your direct advice amounts to advice about using the advice; placing this "meta-advice" in the letter leads a third-party reader to read the qualification into the advice itself.

My comment elevated form over substance. The language of the disclaimer is part of the advice: it's information about the likelihood the advice will prove accurate. It is no less part of the advice than a direct statement expressing that likelihood. The counter-argument that the disclaimer is boilerplate is unavailing: it compounds untruthfulness, as boilerplate inaccurately expresses the attorney's opinion in the particular case. When attorneys gratuitously denigrate their own degree of confidence through boilerplate disclaimers, they are no less untruthful than when they exaggerate their certainty. Likelihood of accuracy is of the essence; John Yoo's misconduct was gross over-confidence in his theory.

CYA letters are so ingrained in American legal practice that even I overlooked the unethical character of Monroe's letter. The deep seated untruthfulness of a professional practice is matter for deep concern. It makes lawyers oblivious to other forms of dishonesty, lowers professionals' commitment to truthfulness, and creates an accurate public impression of dishonesty. CYA letters also constitute bought exoneration, where a client's attorney administers "justice"—for a fee.

Interlude 20. On the Morals of Ethicists

2010-10-22T02:13:00.000-07:00

Fourth in Mark Brennan Series

At the Legal Profession Blog, legal ethicist Mike Frisch removed his post, rather than admit error or stand his ground. Frisch posted the usual state-bar character assassination, where the reporter recaps the worst allegations of the bar court, while omitting most of respondent’s contentions and denials and caricaturing the others. Two commenters replied. The anonymous first commenter posted insightfully on September 24:

I find this case troubling. As I read the opinion, I just get the feeling that there is much more to this case than is reported. It appears to me that the judge and the attorney were both engaged in a battle. In other words, it was not just the attorney that had lost control but also the judge.

I posted the second comment, noting the report’s lateness and referring readers to my blog posts at http://tinyurl.com/23aghf2 [scroll down]. Following these postings, Frisch modified his position without admitting his error or analyzing his biased attitudes and impressionistic methods. He wrote:

There has been a fair amount of commentary … on this matter, much of it favorable or at least sympathetic to the disciplined attorney. Carolyn Elefant has suggested that the sanctions here were unduly harsh or motivated by animus generated by the attorney's success in the underlying representation. Also, it is noteworthy that the case was decided last year but appeared in the September 2010 listed decisions of the Colorado disciplinary system.

While Frisch finally pays attention to the Colorado dates, it is also “noteworthy” that he doesn’t date his “Update.” When you change your position or correct an error in a commented blog post, the ethical consensus among bloggers dictates that you note the date of the comment, but Frisch’s lack of candor goes beyond this failing. Frisch posted the “Update” above the old September 24 date line, implying that he updated his entry on the same date as it was written, but the earliest he could have changed it was October 4, 2010 (from the dating of the web cache at http://tinyurl.com/35soxp4). Frisch concealed his falsehood’s duration. Like a shady state-bar respondent, he resorts to deceit short of outright lies, in the fatuous hope no one will notice.

I e-mailed Mark E. Brennan, the subject, about the defamatory posting. The Colorado web site Know Your Courts reported that when Brennan then tried to discuss the matter with Frisch, Frisch almost immediately offered to remove the posting. Know Your Courts reports that Frisch told Brennan, “It is just not that important to me.”

Obviously, it wasn’t: the post came down without further comment. It’s not the only instance of dishonest blogging or even the worst for the Legal Profession Blog. In the 4^th Installment, “The State Bar and It Academic Allies Undermine Legal Sophistication,” I describe how another blogger associated with that blog suppressed my critical comments on his remarkably authoritarian advocacy of imposing a full-disclosure requirement of all anonymous posting to the Internet while bar applicants attend law school. Not only was my comment suppressed, but Lipshaw suppressed the other commenter’s already published response, quoted in that 4^th Installment, together with Lipshaw’s self-damning reply, also quoted in that kanBARoo court installment. (In fairness, the other major academic state-bar-establishment Internet site, the Legal Ethics Forum, hasn’t resorted to dishonest blogging practices.)

Dedicated bloggers and all devotees of basic truthfulness revile this practice of removing and changing commented blog entries, practices where the dishonest blogger hides the truth and reneges on his implied agreement with commenters, who don’t reckon that if they win an argument or expose a deceit, the losing blog owner will destroy the evidence. For those unfamiliar with the norms, consider this controversy among theoretical-physicist bloggers, who scorn another physicist because (among other reasons) he blogs dishonestly:

At [Luboš Motl’s] blog, The Reference Frame, [Luboš Motl] often deletes comments. … In addition to that, Luboš Motl has the habit of editing posts after publishing which, taken together with deleting comments, makes others look stupid or out of place while supporting him. (Backreaction.)

In another physics blog, a commenter drives home the significance of Motl’s blogging practices:

If this claim about Motl is true, I think the ‘freakish little sociopath’ label is wholly justified.” (3 Quarks Daily.)

The point of the digression is to clarify, for those unfamiliar with blogging norms, the practices followed by bloggers dedicated to truth-based ideals. Not only must the state-bar establishment recruit ethical invalids, as only they will enthusiastically support the trashing of ethics in ethics’ name, but the state-bar enforcement culture and those academics closest to it (Frisch is Ethics Counsel at Georgetown University Law Center, rather than a professor) actively undermine genuine ethical commitment by its practitioners and their academic accomplices. These cowardly libelers are accustomed to hide behind the litigation privilege, which they remorselessly wield against the reputations of state-bar respondents. Hardly surprising that they may sometimes forget, when quoting the state-bar tribunals as if the findings are fact rather than allegation, that they are liable for damaging falsehoods. Without any moral constraints to oppose to expediency prosecuting a vilified respondent, they can lose track of prudential advice: they forget that the decision of a state-bar court doesn’t collaterally estop an action against a private defamer who parrots the false findings as fact.

83rd Installment. Fine Finally Free: What's the Real Lesson about California Judges?

2010-09-25T23:45:00.000-07:00

The Los Angeles Men’s Central Jail has released Richard Fine, held in coercive confinement for 18 months for disobeying a court order to disclose his financial records. Fine’s intransigence was a victory only in a personal sense. Although speculation about Judge Yaffe’s motives in ordering the release is rife in the Fine camp, Yaffe ordered Fine’s release because he's retiring; he isn’t retiring because of the Fine situation.

Judge Yaffe’s stage-managed retirement illustrates why you don’t have to invent judicial conspiracies to apprehend judges’ ethical hypocrisy, despite their being frequent impugners of lawyers’ ethical integrity. Yaffe is mounting a runaround of the California constitutional provisions that democratically check the governor’s power to appoint judges by subjecting them to retention elections. (Cal. Const., Article VI, section (c).) He will exploit the loophole exempting interim appointments from this requirement. Had Yaffe resigned a month later at the end of his term, a retention election would check the governor in filling the vacancy.

Judge Yaffe is an egregious judicial officer, but we would unjustly condemn him for gratuitously resigning a public trust (remember, he's a superior-court judge, not Sarah Palin). We would treat him unfairly by singling him out even for circumventing a constitutionally authorized legislative check on executive power. He isn’t exceptional in staging this travesty, for it’s the norm; nor is this flaunting of partisanship likely to change any appointment—making the judges’ crass sell-out to petty partisanship more degrading.

Since Yaffe wants to retire because he's old, and opportunistic early resignation is customary among our half-civilized judges, lawyers will immediately understand why Yaffe released Fine. Yaffe definitely became aware of the portending scrutiny by a new judge, since Fine had just moved for re-assignment based on Yaffe's impending retirement. Informal norms press judges to wrap up business before retiring, to avoid making work for other judges. Fine’s motions and appeals could harm Yaffe’s reputation, under a judge who’s irritated with the chore. Enjoying less personal influence after he retires, Yaffe should even fear reversal.

Some of Fine’s supporters, including the always truth-disrespecting Leslie Dutton, base their conspiracy theory on a claim found in Fine's briefs, asserting a U.S. Constitutional limit of five-days confinement for contempt. Dutton even invented an acronym for the hearing that supposedly should have enforced this nonexistent limitation: “FARR hearing”: her complete confusion about a case where the petitioner bore a similar surname. (See Farr v. Pitchess (1973) 409 U.S. 1243.) This falsehood disserved Fine by implying that coercive confinement is an illegal, aberrant practice victimizing Fine alone, whereas it's really an ensconced threat to lawyers and the public. As far as any pressures promoting Fine’s release, the contents of Judge Yaffe’s order support the import of the length of Fine's confinement, the only issue where Yaffe's order revealed vulnerability.

Fine and his supporters, wrapped up in these confusions or prevarications, led with their untenable fraud-by-the-courts theory. This Fine–Judicial Watch theory doesn’t itself scare members of the state-bar establishment, but the course of events does nonplus them. The California Supreme Court’s motion to dismiss Fine's civil lawsuit denigrates Fine's legal theory, through the office of that court’s attorneys, Benton, Orr, Duval & Buckingham:

Although Fine trumpets the various actions that he has filed against judicial officers as evidence of his successful prosecution of alleged judicial corruption, he has never prevailed in any attempt to disqualify a judicial officer (state or federal) based solely on the receipt of “local judicial benefits.” [Citations.] Moreover, Fine’s reliance on his strained interpretation of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. The Sturgeon decision specifically found that the payment of local judicial benefits was neither a waste of taxpayer money nor a basis to seek recusal of a judicial officer receiving such benefits. [Citation.] (“Defendant, The Supreme Court of California's Notice of Motion and Motion to Dismiss Complaint,” p. 3, fn.2 [http://tinyurl.com/33amqcz].)

This language shows both the courts' distance from Fine’s interpretation of Sturgeon v. Los Angeles County and, despite the legal unformidability of Fine’s “strained” theory, their wish to forgo stock taking. As Savannah S. Winslow points out in the pro-Fine blog Right Trumps Might, Sturgeon made no specific findings on recusal! The Legislature’s failed attempt to immunize Councilmen and judges retroactively for providing and accepting the unlawful benefits points to the same avoidance. While grant of immunity doesn't prove grantees' criminal guilt or civil liability (contrary to Fine and supporters), it demonstrates an appearance of impropriety. The Legislature immunized the parties to avoid litigation, not necessarily liability, but the Legislators expected citizens to litigate only because the benefits appeared improper.

Contrary to the tenor of the California Supreme Court’s attorneys’ comment, Fine struck effectively, if blindly, against the California judiciary's moral authority and, for some correct reasons, damaged the Los Angeles judiciary’s reputation. While the judges broke no criminal law and committed no tort, they created an appearance of impropriety by accepting a contribution they knew was probably illegal (what with their being judges). Out of some 400 judges in Los Angeles County, none refused the benefits or protested to bring the remuneration scheme within the state’s administrative-law provisions. During some twenty years of receiving these legally dubious benefits, the judges allowed the practice to continue.

No judge, not one, brought analytic acumen or ethical sensitivity to bear on this irregular practice, where the judges personally benefited. Even as applied to judges, a principled ethical code would sanction only actual impropriety, not its mere appearance, but most jurisdictions’ codes of legal ethics and all codes of judicial conduct impose a duty to avoid the appearance of impropriety, a norm most judges accept. kanBARoo court alone pinpoints the moral contradiction of hundreds of judges who lived comfortably with impropriety’s appearance, while they endorsed the no-appearance-of-impropriety standard; the judges know the public recognizes their hypocrisy.

82nd Installment. The Scope of Legal Ethics

2010-09-15T00:49:00.000-07:00

The profession must rethink legal ethics' scope: which rules define moral character, which rules merely regulate conduct, and what significance differentiates the two. The vast scope of rules purporting to be ethical itself oppresses lawyers and the public when it moralizes administrative duties, bestowing on their enforcers morality's undeserved imprimatur.

Try to solve the following hypothetical by William Simon. (See W.H. Simon (1999) Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433.) Although not Simon's intent, the hypothetical shows how today's versions of legal ethics disparage some desirable but amoral administrative rules, while over-enforcing, as if rules of ethics, other amoral administrative rules. Here's the hypothetical, a true story:

Simon discovers that Government agency fakes supevisor's absence to excuse unjust delay of client's food stamps. He impersonates supervisor's boss, bringing "absent" supervisor to the phone. Simon reveals own identity and confronts supervisor, who offers expected excuses and immediately releases client's food stamps.

Simon violated the governing Model Rules of Professional Conduct, which prohibit all lying to third parties or opponents, and in class discussion, most of his students criticized his conduct as unethical. For his part, Simon rejects "quasi-categorical ethics" in favor of a contextualized analysis, where the virtues of such "moral activism" shine through. I can't fault Simon's specific conduct: his students' arguments, too formalistic, don't persuade. Simon prevaricated but harmed no one, but focusing the discussion on an indigent client's oppression by a powerful and indifferent institution distracts the reader from considering that our adversarial system enforces the law of lawyering reciprocally: consider if a government lawyer deceived the client to discover misstatements on the client's application. The public reasonably demands a certain respect for the dignity of opponent and third parties by lawyers, whom the state grants a monopoly in their trade.

The rule should have been enforced against Simon, but the main question is how, as Simon didn't act unethically in breaking the rule: in context, he even acted admirably. To discipline him professionally would unjustly threaten his right to practice, when his conduct, not morally turpitudinous, betrayed no lack of fitness for legal practice, instead showing ingenuity and zeal. While Simon's students and the bar-establishment responsible for their thinking would accuse Simon of unethical conduct, Simon favors reforming the rules to permit the conduct, but both mistakenly accept the ethical (that is, moral) character of any good rule specifically governing law practice. To the contrary, violating a rule benefiting the profession or the public does not necessarily mark the violator unsuited for practicing law. Different ethical theories imply different assessments of Simon's conduct, but disloyalty to a client, lying to the client, lying about the facts or law in court, reveal a flawed character because these acts transgress core moral principles pertaining to an attorney's agency.

A jurisdiction's "law of lawyering" is often split between a code of ethics and an ordinary legal code, in California, the Business and Professions Code, but the section of the law's corpus in which a provision falls barely affects its content or the consequences of violating it. The law should recognize a material distinction between administrative rules and ethical rules. Rules like the general prohibition against lying in the course of representation belong in the legal rather than the ethical code. Rules that create an orderly profession but don't define the moral core of the law of lawyering should be enforced by civil fines and penalties rather than professional discipline, to deter undesirable conduct without supplying a disciplinary yardstick. Including rules besides narrowly defined ethics in an ethical code disparages the real ethical commandments, centered on loyalty to client and specific forms of truth telling, by equating them with administrative requirements. Most importantly, using administrative rules as if they were ethical rules subjects excellent lawyers of sound character to professional discipline.

A rule's amoral, administrative character shouldn't preclude its enforcement because of its not being a proper rule of ethics, but genuinely ethical rules aren't purely systemic, and only rules of ethics, those rules whose violation directly and incontrovertibly reflects adversely on moral character, should form part of the recognized professional ethics.

81st Installment. Loyalty to Client versus Candor with Court: Client Perjury and Related Bugbears

2010-07-31T01:51:00.000-07:00

Officer-of-the-court jurisprudence—ethics that take seriously some lawyers’ self-important belief that they’re “officers of the court”—has been the most divisive issue among legal ethicists since the ABA’s 1908 promulgation of the Cannons of Professional Ethics. Where loyalty to client is pitted directly against duty to court, consensus dissolves, as it does concerning managing client perjury: one jurisdiction mandates practices another rejects as unethical. For decades the rule that a lawyer commits misconduct when he allows his client to commit perjury has been the most heated topic debated in law-school "professional responsibility" classes, but debate hasn't produced consensus. For adherents of officer-of-the-court jurisprudence, the issues are candor with the court and facilitation of crime. For adversarial lawyers, anointing lawyers agents of the court—duty bound to screen clients for truthfulness before the jury takes its turn—smacks of the Star Chamber, where lawyers were empowered to prejudge their clients' credibility and burdened with responsibility for their clients' lies. (A. Sterling, Truth, Justice, and the American Way: The Case against the Client Perjury Rule (1994) 47 Vand. L. Rev. 339.)

The threatening ascendancy of officer-of-the-court jurisprudence erodes lawyers’ loyalty to clients to where both bar courts and respondents don’t even notice client-centered ethical issues, in the following example, confidentiality. Consider the following as if it were a hypothetical on a Professional Responsibility exam; we’ll call it hypothetical because incidental facts have been changed to avoid identifying respondent attorney:

Attorney, having exhausted the allowed extensions of time, is late in filing an appellate brief. Attorney deceptively backdates the document, which the clerk mistakenly files. Attorney denies the backdating when opposing counsel challenges him, but before the court rules, attorney admits the deception. The court strikes attorney’s brief, causing attorney’s client to lose the appeal. After opposing counsel files a professional-discipline complaint, what culpability should the state bar find?

Neither the bar court nor the respondent recognized the confidentiality issue: the state bar treated the breach of client confidentiality as mitigating the deception's culpability, respondent as exonerating that offense's commission. Any second-year student who doesn’t find an issue of breach of client confidentiality in the hypothetical should fail the exam. But lawyers? However ethically serious they consider petty deception of the judiciary or however unseemly they consider baseless intransigence, lawyers should be unanimous on the case’s central ethical issue: should attorney unmask his own deceit? The answer should be a resounding No! Every lawyer must understand the most basic ethical premise of law practice: lawyers don’t fink on clients; despite many jurisdictions’ requiring it, ethical lawyers refuse even to report clients intending perjury. (A. Sterling, supra at p. 423, fn. 311 [anonymous survey of the District of Columbia bar revealed that 90% of those surveyed would call the perjurious criminal defendant to the witness stand and conduct the defense as if the client had testified].) Every lawyer should understand that legal representation is an agency relationship, where his client’s case may suffer if the court discovers attorney’s transgressions. (See J.A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court" (2000) 48 Buff. L. Rev. 349 [centrality of agency law in governing American lawyers since the Revolution].) Attorney sacrificed his client’s interests for personal moral purity—or for expected and received mitigating consequences.

Attorney’s knowledge that his filing was untimely is privileged because attorney acquired the information in the course of representation, but officer-of-the-court jurisprudence hugely distorted both parties’ ethical understanding. The state bar and respondent assumed the existence of duties to the court overshadowing client loyalty. They differed only in the state-bar’s regarding the retraction as mitigating attorney’s lack of candor, while attorney regarded it as complete excuse—although attorney rectified his acts of deception by committing a worse ethical transgression sounding in breach of confidentiality. Cleansing an attorney’s soul of guilt at a client’s expense sacrifices the client’s interests to the attorney’s no less than betraying a client for money. Between deceiving the court and undermining his client by disclosure, the uncharged disclosure of the filing-date’s falsification is the severer transgression.

All fundamental legal rights depend on attorneys' performing their duty of loyalty to clients. The right to be heard withers without attorneys who loyally represent their clients, and the tyranny of lawyers’ morality oppresses more than does ordinary corruption: from Watergate to the torture memos, moral ideology rather than personal profit motivates the greatest lawyerly crimes. While absence of due process in the bar courts rebuts calls for harsher penalties, discipline is lax for lawyers who excuse their disloyalty because they subject clients to conscientious dictates, not greedy appetites. Contrast attorney’s actual suspension for less than six months to the two-year suspension a state-bar court imposed on a lawyer lacking moralistic self-justification for deceiving a federal court about filing dates.

Interlude 19. California Supreme Court denies Philip E. Kay’s petition to review 3-year mandatory suspension

2010-07-15T22:47:00.001-07:00

As kanBARoo court reluctantly predicted, the California Supreme Court ignored the substance of Philip E. Kay's petition for writ of review, issuing its standard boilerplate denial. Kay must now decide whether to move for rehearing. He should file a radically succinct motion for rehearing, containing no more than fifteen pages—ten is better—focusing exclusively on the most compelling and certain issues. Unquestionably, the Supreme Court will deny it, but Kay will have made the clearest possible record.

Interlude 18. Judicial Narcissism versus Justice: the Melvin H. Hoffman Matter

2010-07-12T23:17:00.001-07:00

During a phone conference, family-law litigator Melvin Hoffman called a judge a "narcissistic, maniacal, mental case." The judge reported Hoffman to the Illinois state bar, resulting in a six-month suspension, and the judge drew ridicule, even from within the state-bar establishment (see Monroe Freedman's comment). The Illinois state bar's conduct is unsavory, not only because of the infraction's pettiness but also because of prosecution in bad faith, reviving long-abandoned charges, one a decade old. From review of the ABA discussion board, one conclusion is certain: lawyers and the public—following numerous exposures—will no longer presume they should respect undeserving judges; but the legal and ethical underpinning of a critical attitude toward judges lags.

Many commenters (e.g., Comments #39 and #81) applauded Hoffman's ethics, but state-bar ideology isn't quite dead. One commenter (#10) came close to admitting that irrational, automatic public respect for courts is what's at stake, but the most repugnant argument for mandatory respect was the hypocritical claim that Hoffman's conduct was prejudicial to his client. These critics' (#33, #21, #58, and #92) readiness to second-guess Hoffman shows this is not good-faith criticism. Even the most sophisticated of these comments (#38), which pointed out that confronting a narcissist with his diagnosis predictably causes an outburst of narcissistic rage, refused to acknowledge that the injustice might have gone far enough that the incident's publicity was the only remedy or that elicitation of the judge's expected narcissistic rage was the only tactic exposing the judge as a megalomanic narcissist. (See "Installment 22: Can you tell victory from defeat?") To demand Hoffman explain his tactical reasoning ignores his work-product privilege. This was no episode of "snapping," Hoffman having written the judge to reiterate and elaborate his insights.

The lack of legal sophistication in the comments shouldn't surprise given the low level of legal coherence cultivated by a nationwide state-bar establishment that has eliminated real legal contention in ethics. The legal and ethical naivete underscores the importance of looking to other state-bar cases to build a cumulative case against the state-bar courts, and this means looking across jurisdictional lines, since the state-bar courts are similar across the land. Confusion dominated the discussion of courtroom free-speech rights. Hoffman's critics relied on the half-truth that attorneys in court lack free-speech rights, but Hoffman's supporters also erred, if in a less pernicious fashion, by simplistically affirming that ordinary free speech rules favoring the speaker applied. When an attorney represents a party, restrictions on the attorney's speech aren't measured by the attorney's free speech rights but by his client's equally exacting first-amendment right to petition. While the Hoffman supporters were formally wrong in claiming Hoffman's free-speech rights (#21), they recognized a first-amendment issue. Any restriction on an attorney's right to speak relevant truth defeats his client's right to petition. The burden of proving falsity falls on the judge or bar prosecutor, whereas the Illinois bar court assumed Hoffman culpable unless he proved his accusation.

The conspicuous weakness in Hoffman's supporters was their general failure to distinguish this act of state-bar oppression from ordinary court-imposed sanctions or contempt findings. Hoffman's critics understood a distinction in the opposite sense that duty requires attorneys to demonstrate compliance with higher standards than laymen, but that's a miserable debater's point: "respect for the court," while theoretically a higher standard, is vaguer, hence harder to prove, than the standards for contempt or other sanctions. For a judge to report a lawyer to the bar courts without citing him for contempt or issuing any sanction is so craven it immediately inculpates the judge in some foul play. The judge bypassed the rigorous criteria for contempt and monetary sanctions in the courts of record by avoiding those courts and forum shopping a softer adjudicator.

Any state-bar discipline for courtroom behavior imposes a penalty far more onerous than the courts, as even a public reprimand often ends an attorney's career. The difference in punishment between lawyer and nonlawyer for courtroom behavior is so wide, it affronts the lawyer's and his client's equal protection of the law.

80th Installment. What happened to lawyers’ amoral ethical role?

2010-06-20T17:33:00.001-07:00

Background

The "standard" amoral account of lawyer's ethics was expressed most precisely and defended most rigorously in Professor Stephen L. Pepper's 1986 paper "The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities" and in Professor Pepper's rejoinder to moralist David Luban's comments. Professor Pepper so severely savaged Luban's moralism that Luban attached a caveat—stating that some of his positions have since changed—to his permission to publish the comments. Luban's drubbing by Professor Pepper consolidated "neutral partisanship" as the profession's formal ethical ideal, but Luban's moralistic view has nevertheless come to color the state-bars' practical interpretation of legal ethics. While Professor Pepper didn't predict the swing toward moralism, his analysis provides a tool for understanding it.

Although moralism carries numerous grand implications for law, the 1986 debate focused on two issues: client choice and legal tactics. The issue of client choice is: Should a lawyer apply ordinary morality to decide whether to take a case, or should the lawyer suspend ordinary moral judgment when deciding? The issue of legal tactics is: Should a lawyer apply ordinary morality to determine what legal tactics to use, or should the lawyer employ the most effective tactics that his client is willing to pursue? Professor Pepper opposed applying ordinary morality to both decisions, and David Luban favored it for both.

Pepper vs. Luban

Professor Pepper argued that the formal purpose of the lawyer role conflicts with lawyers' informally constituting themselves as a moral screen for any citizen's legal projects. Professor Pepper's main argument was based on the democratic necessity of citizens' unfettered access to the law, independent of lawyers' moral scrutiny, but his most-interesting and most-ignored argument derived from a view of public policy as contract: the ethical codes—3/4 devoted to guild protection and 1/4 to attorney duties to clients—demonstrate a bargain between society and the profession. What is the profession's quid pro quo for the anticompetitive protection society affords lawyers? The ethical codes evince that the public's benefit of the bargain is the lawyer's duty to subordinate any conflicting personal interests to client- (or potential-client) purposes related to the representation. The lawyer's personal interest in avoiding dirty-hands involvement in unsavory cases or tactics is lawyer-centered, an unethical consideration, which shouldn't affect the availability of legal representation and other access to the law, a public good. (See also Spaulding, The Rule of Law in Action: A Defense of Adversary System Values (2008) 93 Cornell L. Rev 1377, 1391 [antidemocratic implications of substituting lawyer's conscience for the client's].)

Unsurprisingly, the concept of an amoral lawyer role repulsed David Luban, since Luban isn't law trained: his criticisms of the lawyer's amoral role were remarkably vulgar—laymanlike in the worst sense. Luban rejected role-specific morality on principle; his argument, repetition of axiom: professional ethics must be transparent to ordinary morality. Accepting a client and deciding on legal tactics are, for Luban, personal moral decisions. Luban's naive arguments harped on moralistic platitudes, such as, "You must remember that some things autonomously done are not morally right." Luban missed the point that to have a system making lawyers broadly available to the public, professionals must evaluate their acts using role-specific ethical criteria, and he exposed the shallowness of his arguments when he disingenuously maintained that access to lawyers isn't important for autonomy because the citizens seldom have recourse to the law.

Role Amoralism vs. Moral Activism Today

The formal ethical rules continue to espouse neutral partisanship, albeit in undertones; but the regimes the state bars enforce and the judiciary's attitudes have gutted the maxims of neutral partisanship. The treatment of vexatious litigants by judges—lawyers are afraid to handle vexatious-litigants' cases, regardless of case merit—shows how far the profession has swung in its ideals from amorality in client selection. The state-bars' prosecution of lawyers for decorum violations provides an indirect glance at the decayed duty to use any advantageous tactic.

From Professor Pepper's under-recognized insight into the terms of pact between public and profession, we can infer why the profession has proceeded in the opposite direction after Professor Pepper demonstrated the correctness of the amoral neutral-partisanship position. Society's offerings to the lawyer guild have declined, peaking when Professor Pepper wrote his essay. The status of lawyers and consequently their benefit from guild privileges had risen until then, but the trend reversed with lawyer glut, then outsourcing, and finally businesses' recessionary drive for profits. Since lawyers can obtain fewer privileges from guild membership, they are willing to cede less to the public. The license to influence the choice or course of litigation according to a lawyer's moral views is a privilege lawyers are unwilling to forgo in return for depreciated rights. Apart from the instrumental significance of the change, it marks the erosion of a symbolic bulwark against moralizing the profession. (See Wendel, Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection (2006) [even limited moralistic opt-out rights for lawyers are inconsistent with concepts of client legal entitlement].)

Professor Pepper's analysis permits further inference. In response to Luban's downplaying ethical guidelines, Professor Pepper pointed out that the absence of guidelines leads to the assumption that inarticulate knowledge is the root of discipline matters. Inarticulate knowledge—primal moralism—reduces legal ethics to a supposed common denominator in ordinary morality, implying that legal ethics is mainly about condemning unscrupulousness. Hypocritical guidelines recreate the anomie of no standards, reinforcing Luban-style moral-activism's appeal.

79th Installment. Chief Trial Counsel's Office Admits Grave Lapses in Bar Prosecutors' Legal Ethics

2010-06-07T10:42:00.001-07:00

10^th in Philip E. Kay series

In its brief opposing Kay's petition for writ of review, the California State Bar admitted that in prosecuting cases initiated by judges, the Bar habitually commits acts of moral turpitude. These admissions, made only to avoid more damaging inferences by the legal community, establish as never before that the State Bar violates respondents' due-process rights and prosecutes at cross-purposes with its statutory public-protection role.

1. Concealed ex-parte communication.

The Konig case, an employment suit by a State Bar prosecutor, laid bare the State Bar's motives. The remarkable story is that the State Bar tried to attain two illicit objectives with one turpitudinous act by concealing from Kay that Judge Anello was the complaining witness. This was useful for two reasons. First, the State Bar secured unlimited time to prepare its frame-up. Second, the State Bar advanced its project of rehabilitating Judge Anello's reputation by concealing the judge's role in that project's initiation.

Konig: "If Judge Anello is not entitled to know why the NDC hasn't been filed and why he hasn't been able to reclaim his reputation publicly, then I think someone else needs to explain that to him." (Memo from Konig to superiors (August 4, 2003).)

Recouping a judge's reputation isn't an authorized purpose for State Bar prosecutions. It's a corrupt purpose: we don't even know the State Bar's reward for pleasing judges, and it's a little surprising that nobody in the legal-ethics world wants to find out. The evidence unearthed in the Konig case, records of conversations between Konig and his controllers, show then-prosecutor Konig in discussions with Judge Anello behind Kay's back, as neither Judge Anello nor the State Bar informed Kay, as the rules require, when Anello complained against Kay.

Konig's superiors were concerned that Konig was endangering Anello's confidentiality, and Konig freely expressed his concern with pleasing Anello.

Konig: "The question of who initiated this investigation has now been raised by one of the two individuals. As previously indicated, to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Letter from Konig to Judge Anello (January 7, 2003).)

Konig: "I was more interested in having [Kay] admit responsibility as that would serve as an apology to Judge Anello and that I would consider entirely stayed suspension if that occurred." (Memo from Konig (August 4, 2003).

Why would it damage the State Bar's case if Kay knew the State Bar was discussing a complaint against him? The reason is that the State Bar was illegally circumventing the five-year statute of limitations.

This is all amazing enough, but it isn't new. The new information, supplied by the State Bar in its opposition to Kay's petition for writ of review, is that the Office of Chief Trial Counsel routinely violates its Rules of Procedure by not counting judges as "Complainants." This practice denies respondents the due limitations period.

It is the practice of the State Bar to treat all complaints initiated by Judges as SBI [State Bar Initiated] Complaints. (State Bar Opposition at p. 20.)

The California State Bar Rules of Procedure rule 2.28 defines "Complainants": "'Complainant' is a person whose communication generates an inquiry or a complaint.'" Rules of Procedure rule 2403(d) establishes that investigations initiated by a judge's allegations are Complainant-Initiated, not State Bar Initiated. The rule giving the statute of limitations is Rule 51(a): "A disciplinary proceeding based solely on a complainant's allegation of a violation of the State Bar act or Rules of Professional Conduct shall be initiated within five years from the date of the alleged violation."

By plain meaning, the rule requires that the State Bar treat complaints by judges as complainant generated, but the State Bar's misconduct is worse than it looks. The State Bar knows a judge is a Complainant under the Rules of Procedure; otherwise, why did Konig's supervisors say his public identification would jeopardize the case? The State Bar also knows that its deviant rule interpretations confuse respondents, but it takes no steps to clarify the meaning: with this miscue and others, the State Bar exploits respondents' confusion, another example where the State Bar cultivates ambiguous rules as a weapon against respondents being the ambiguous schedule for petitions for writ of review. Most importantly, the State Bar isn't even consistent in treating judges' complaints as SBI, as the State Bar's letter to Judge Anello offers the judge his choice in the matter, a practice even harder to square with the express language of the Rules of Procedure.

Konig: "to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two [Kay and cocounsel Dalton] will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Konig Letter to Judge Anello (January 7, 2003).)

2. Misrepresentation of Kay's unstained career.

Another claim the State Bar knows false is that Kay "has made a career out of histrionics designed to control and disrupt whatever courtroom he is in and unnecessarily prolong the process." (State Bar's Opposition at p. 31.) The charges will survive despite their implausibility only because a review court doesn't weigh evidence, but the State Bar has now put Kay's career at issue. The libelous outburst allows Kay to argue that a lawyer charged with repeated violation of court rules and decorum would have been found in contempt or at least sanctioned for such behavior. Kay's unblemished record refutes the State Bar's general case theory, which the quoted outburst summarizes.

The outburst compels readers and the reviewing court to ask, why did the judges who brought charges before the State Bar fail to sanction Kay at trial? Their excuses are lame. We hear Judge Weber supposedly avoided declaring a mistrial, despite scolding Kay for alleged misconduct, because the judge wasn't certain Kay prejudiced the jury.

When Judge Weber found that it was a close call whether defendants were denied a fair trial, she was not holding that it was a close call whether Petitioner committed misconduct, but whether his misconduct fundamentally prejudiced the other party's right to a fair trial. [Citation.] In fact, as she testified she found his conduct before her "appalling." (State Bar Opposition to Kay's Petition for Writ of Review at p. 21.)

Completely lacking in credibility (and irrelevant—who cares if Judge Weber was "appalled"). Repeated misconduct in various courtrooms always creating "close calls" —but never more—flies in the face of the laws of probability. Judge Anello even testified that Kay announced he wouldn't obey the judge's so-called orders. This announcement suffices to find contempt unless the commands weren't orders but judicial one-upmanship, as any trial lawyer knows is all too common when incompetent, obsessive-compulsive judges micromanage trials. The futile warnings of such judges don't constitute orders, but the State Bar's main "evidence" consisted of quoting these judges remonstrating with Kay and applying labels like "appalling." While factual implausibility isn't a review criterion, the eagerness of the State Bar to pursue a case so implausible, its smug rejection of Kay's concern for plausibility just because the State Bar can get away with it, deserves the widest condemnation from lawyers and ethicists.

3. Absurd charges alleging an ancient citation error.

The State Bar's readiness to pursue absurd charges based on technicalities is also demonstrated by the ridiculous charge concerning a case-law citation, yes, a single citation. The State Bar found that Kay willfully misled the court by offering an inapposite citation, when the document containing the citation was a) written by cocounsel; b) presented more than five years ago.

What does the State Bar hope to gain with a charge so absurd and so late: discipline for an alleged miscite five years ago, not even committed by Kay? The question can be answered precisely. To maintain its credibility, the State Bar Court labors to preserve a facade of substantial review. Had entry of default not precluded matter's hearing by the Review Department, review would eliminate the miscitation charge. The State Bar's routine practice includes charges it knows are absurd; the State Bar justifies this practice by what its prosecutors call "adversarial procedure." Including frivolous charges enables the State Bar Court's Review Department to appear to perform review. Including frivolous charges also often allows the State Bar Court to uphold the charges, despite the absence of proof, when a respondent defaults. Issuing charges the State Bar knows are unsustainable is as clear an example as you'll find anywhere of "moral turpitude." (Bus. & Prof. Code, § 6106.)

78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of review

2010-04-25T23:37:00.001-07:00

9^th in Philip E. Kay series

State Bar respondents are often unaware that the petition for writ of review, the ultimate review vehicle in State Bar Court, has nothing but its destination in common with the petition for review, the review vehicle in the courts of record. Court rules limit only the latter's length. State Bar respondents, otherwise enjoying fewer rights of review than other professionals, can file California Supreme Court petitions containing unlimited irrelevant matter. What explains the court's indifference to the length of a petition for writ of review, when it was so concerned about reading many short ones? It's simple: no one at the Supreme Court reads petitions for writ of review, not even a clerk. So I concluded when within hours of receipt the Supreme Court denied a respondent's petition I drafted.

Phil Kay has now filed a petition for writ of review. Of course, I'd prefer to be proven wrong about the outcome, but at least the petition isn't a completely wasted effort. It performs excellently in setting out and proving Kay's case; I'd recommend it to anyone wanting to understand this important State Bar case because of the petition's legal and factual truthfulness. This characterization doesn't apply to the opinions written by "courts" in the State Bar hierarchy (see disHONNest judge); and it must be admitted, it doesn't apply to the bulk of attorney submissions: being oppressed by the State Bar takes its toll on attorneys' ethics. (See The Richard Fine Story: An Objective Analysis.)

Previous kanBARoo court Installments touch the issues Kay's petition raises except for two related arguments that may have merit but which fail as stated. The arguments are summed up in Kay's theory that the State Bar's Kay decision is tantamount to a collateral attack on established superior-court verdicts. Specifically, Kay argues that a judge may only instigate a State Bar investigation by filing a complaint for what Kay calls "reportable actions." Business and Professions Code section 6086.7 mandates that judges shall report:

A final order of contempt imposed against an attorney;
Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
Imposition of sanctions; or
Imposition of a Family Code civil penalty.

Kay's related claim is that being cleared of trial misconduct necessarily clears the attorney of State Bar misconduct for the same offense. Kay's argument limiting the meaning of "attorney misconduct" and Kay's argument limiting judicial reporting to "reportable events" both treat circumstances mandating prosecutory reports as if they limit prosecution.

If only they did. The statute states that the judge shall report certain events, not he shan't report others. The State Bar hierarchy loves legal over-reaching because it invites simple rebuttal based on the statute's express language. When applied to trial misconduct, this argument presuming limitation to "reportable events" can engender particular confusion. When an attorney appeals to a jury's passions but doesn't succeed—maybe the misbehaving attorney loses—Kay's interpretation implies the judge has nothing to report, seemingly reducing Kay's argument to the absurd. The correct answer—that the conduct involved resolves into another "reportable event," namely a contempt conviction—is hard to grasp from Kay's claim that misconduct requires prejudice.

No doubt, the meaning Kay wants to find in the reported-events statute is what the statute ought to say, and I've contended it's what it must say to survive scrutiny under the U.S. Constitution's equal-protection clause, since holding lawyers to a higher standard at trial imposes a qualitative disadvantage on represented parties. Short of the constitutional argument, Kay can reasonably maintain that the charges he faces are improbable without the statutory events.

Kay intends to make the most compelling case. His forced interpretation of the mandatory-reporting statute doesn't serve his purposes. He should lay a foundation based on his Constitutional rights.