kanBARoo court

Interlude 26. At ABA Conference, California State Bar prosecutor Melanie J. Lawrence—notorious felon—denies the existence of prosecutorial misconduct

2013-05-09T11:30:00.000-07:00

Prosecutorial misconduct has become so rampant in the U.S. that official ethicists recognize a problem of state-bar failure to prosecute prosecutors. kanBARoo court 85th Installment, California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence, concluded that state bars fail to prosecute prosecutors because state-bar prosecutors themselves commit rampant misconduct. A conclave of official ethicists and state-bar enforcers in Chicago last August illuminated the problem, first through the insights of academician Ellen Yaroshefsky of Cardozo Law and functionary Maureen E. Mulvenna of the Illinois state-bar establishment; second, from the example in their midst, Melanie J. Lawrence, representing the California State Bar. (Hat Tip: Helen W. Gunnarsson.)

Yaroshefsky explained research findings: winning outweighs legality when moralism convulses prosecutors once they convince themselves of the defendant's guilt.

Mulvenna described a case, In re Howes (D.C. 2012) 39 A.3d 1, which exposes the depth of state-bar complicity in prosecutorial misconduct. Prosecutor Howes bribed inmate witnesses to appear, by illegally dispersing witness-voucher funds. Howes then lied to the court to conceal the influence and embezzlement. Shockingly, half of the hearing panel favored a mere suspension, some members recommending duration as short as one year, on the ground that the prosecutor acted for meritorious reasons: convicting a guilty defendant.

One dissenter denied the problem: Lawrence—a functional illiterate in the law—with emblematic California State Bar unearned arrogance and condescension, advised the academicians to “go and read the reports for yourself.” Lawrence’s denial is not the result of naivete. Lawrence knows the California State Bar ignores prosecutorial misconduct, because she perpetrated proven misconduct in full view of the State Bar and not only got away with it but was twice promoted. (See also: 14th Installment, Turning Point, including Comments; and 22nd Installment, Can you tell victory from defeat?) Delegating Lawrence to opine on prosecutorial misconduct further ratifies hers and proves the existence of the problem the California State Bar dispatched Lawrence to Chicago to deny.

98th Installment. The California State Bar seeks new oppressive pleading allowances—and the defense bar pretends to object

2013-03-13T16:38:00.001-07:00

The official California State Bar “defense bar” bemoans the recently proposed formal curtailments of respondents’ right to explicit prosecutorial pleading, but in practice the bar court long ago abandoned its formal pleading rules. (State Bar Rules of Procedure, rules 101(b)(2) & (3).) The defense establishment doesn't know because for years the official bar-defense attorneys have allowed prosecutors license in their vague charging allegations. Let any State Bar defense attorney name a case where they filed a motion to dismiss because the allegations failed by standards the Supreme Court repeatedly demanded that pleadings disclose not just the violated rule and the violating conduct but the manner in which the conduct violates the rule. (See Baker v. State Bar (1989) 49 Cal.3d 804 and predecessor cases.)

The bar court effectively repealed the pleading requirements because the bar-defense establishment had ceased raising them after the California Supreme Court tired of repeating itself and then drifted to authoritarianism. Granting prosecutors license has become part of the defense establishment’s grand bargain: preferential treatment for not rocking the boat. Because of its inexperience with real cases—those made real by challenging the State Bar’s central allegations rather than quibbling for a better bargain—the defense bar can’t even say what’s wrong with the expansion of the state bar’s pleading powers. The State Bar’s Chief Trial Attorney argues that it can restrict the rights of respondents to the bare necessities of notice pleading as practiced in criminal law, and the defense bar responds that this exemplifies the trend toward fewer respondent rights: “Brick by brick, procedural protections for respondents in the discipline system are being dismantled.” But noticing a trend doesn't even rise to the level of counter-argument; it may even help justify. Noting a trend is the best the defense bar can do when it tries to muster an argument: no wonder it never dared argue for dismissal based on inadequate pleading!

Yet the argument that the new pleading rules are oppressive and illegal is straightforward. The Notice of Disciplinary Charges differs from criminal charges in the crucial respect that the answering party must affirm or deny each of the facts the State Bar pleads. The NDC isn’t just a pleading tool; it rolls pleading and discovery functions into one procedure. To require no connection between fact and charge violates respondents’ right to privacy under the California constitution by inviting arbitrary fishing expeditions. Even more importantly, to require answers to loaded questions, a State Bar norm, violates due process.

97th Installment. Wisconsin Bar Equates Clients with Business Partners

2013-01-14T15:17:00.001-08:00

Attorneys have a qualitatively greater ethical duty to their clients than to their firms because the agency relationship between attorney and client is essential to law practice, whereas the relationship between attorney and firm is a business incidental. The courts of the State of Wisconsin disagreed, citing the principle that they’re ethically equivalent to justify attorney Matthew C. Siderits’s severe one-year suspension. "We have stated on prior occasions that a lawyer's misappropriation of funds belonging to a law firm where that lawyer is employed is to be treated no differently than misappropriation of funds belonging to the lawyer's client." (In re Siderits (Wis., Jan. 4, 2013).) Are sharp business practices with one’s partners the legal-ethical equivalent of stealing from your clients? That’s what the Wisconsin courts have repeatedly stated, but the Siderits decision—too severe for the presented conduct but far too mild for fraud against clients—shows that Wisconsin’s Office of Lawyer Regulation and Supreme Court know that the equation doesn’t hold; the rhetoric is for stiffening penalties to enforce law-firm labor discipline and shifting recovery costs from the firm to its employees.

Attorney Siderits was a recently promoted law-firm shareholder who allegedly cheated on his firm’s bonus policy by submitting several inflated bills, which he reduced before the clients were invoiced. Each of the two years, Siderits obtained a bonus of about $25,000 that he allegedly would not have obtained had he reported his billings accurately. Despite returning the bonuses, Siderits was terminated by the firm.

Equating dishonesty with clients and business associates wasn’t always the rule in Wisconsin, where the courts announced the new policy in In re Casey (1993) 174 Wis.2d 341, in which the attorney nevertheless received the traditional lesser suspension lasting 60 days. The Wisconsin Supreme Court has been clear that disbarment is warranted when an attorney steals from his clients. Taking money belonging to a client for oneself "warrants the most severe discipline—license revocation." (In re Wright (1994) 180 Wis.2d 492, 493.) But even in its zeal to defend the interests of major partners, the court imposed discipline much less severe than if Siderits had stolen funds from a client trust account.

Although the Wisconsin bar hasn’t succeeded in its drive to equate offenses against clients with those against business partners, we’re left with the question of why it’s pushing that envelope. Who benefits? The answer, the major partners in the large law firms, who can use free bar discipline in place of expensive civil suits. The state bars impose the heavy financial costs of discipline on the respondent. The threat of discipline secured the return of the bonus money without cost to the firm. The firm, which could have sought punitive damages under Wisconsin law, otherwise might have had to sue Siderits on its own dime. (Wisconsin Stat. § 895.043, subd. (3); Berner Cheese Corporation v. Krug (2008) 312 Wis.2d 251 [plaintiff may receive punitive damages for defendant's breach of fiduciary duty if defendant acted maliciously toward plaintiff or with intentional disregard of plaintiff's rights].)

96th Installment. Challenge the California State Bar Court Fee Schedule in Federal Court

2012-12-09T20:32:00.000-08:00

A legal-ethics hypothetical

Attorney charges client $17,000 for a $2,500 matter. When astounded client inquires, attorney’s billing office explains that attorney bills in $15,000 increments.

Hypothetical question on the California Rules of Professional Conduct:

Has attorney committed an ethics violation?

Answer:

Attorney has gravely violated Rules of Professional Conduct, rule 4 –200(A), which prohibits charging an “unconscionable fee.”

The fee is unconscionable because when fees are based on work done, they must be based on the work done on the particular case. The fee must be based on “all the facts and circumstances” of the particular case. (Rules Prof. Conduct, rule 4 –200(B) [emphasis added].) Equivalence classes are allowed for work of equal expected amount but not when the work is highly variable within the range.

What discipline for the routine use of this despicable practice? I don’t have access to the State Bar Review Department’s deliberately inaccessible case law, but I’d estimate a one-year suspension. Other opinions?

The California State Bar’s outrageously unconscionable fee structure

In another manifestation of its ethical villainy, the State Bar charges respondents’ legal costs and fees in exactly this shameful manner, brazenly defending its prerogative to save administrative costs by overcharging. Defense attorney D.C. Carr (Kafkaesq) provides a much-needed exposure of this fee structure. Some examples. 1) A simple challenge before the Review Department costs about $15,000 if taken during the first 120 days. 2) If a trial lasts a fraction of a second day, the cost rises about $6,000.

The California State Bar Court’s state and federal vulnerabilities

There are at least two bases for challenging the fee structure—one at the state level, directed to the fees alone; the other federal level, directed against the whole action because the fee structure denies due process. The state-level challenge is based on the State Bar’s having exceeded its jurisdiction. Since the averaging method the State Bar uses is unethical under the Rules of Professional Conduct as well as under ordinary morality, Business & Professions Code section 6086.10, which provides the right to levee fees, isn’t plausibly interpreted as giving the State Bar the right to impose fees unrelated to costs. The statute allows the State Bar “reasonable costs,” a term of art in California civil procedure, requiring an account of actual costs in the particular case.

The federal challenge is based on the federal standards for due process, which focus on the right to be heard, apply to state courts, and are offended by arbitrary fees. Business & Professions Code section 6086.13 permits waiver for hardship but doesn’t compel it, where the threat of huge, disproportionate fees typically leverages settlement terms and routinely prevents respondents from being heard.

I plan future Installments to consider the procedural issues in mounting a state or federal defense based on the theory that the fee structure denies respondents the right to be heard.

Interlude 25. California Supreme Court weighs in for state-bar extremists: Time to turn to the federal courts

2012-07-10T20:39:00.000-07:00

The California Supreme Court has taken the unprecedented step of returning 24 cases for harsher discipline. The Supreme Court would exceed its jurisdiction by expressly demanding an outcome, so it must order the bar court to “reconsider” the discipline or itself impose the harsher sentence. But the Supreme Court’s terse message was clear for all who could read, for two reasons: the Supreme Court cited the infamous Silverton decision; and most tellingly, the Supreme Court returned no cases in which the Bar Court had recommended disbarment. The Supreme Court wasn’t interested in reversing disbarments; it wanted a greater number.

Why didn’t the Supreme Court impose the disbarments itself? This way, it sent a clear message to the State Bar: we want you to do the dirty work; that’s the reason you exist! The State Bar immediately took the hint by petitioning to recall 24 additional cases, despite the patent illegality of this move. (State Bar Court Rules of Procedure, Rule 807(b)(2).) The one-sidedness of the Supreme Court’s intervention—tacitly urging greater harshness rather than justice—reassured the State Bar the Supreme Court would let it run untrammeled.

Only the patsies in the state-bar defense establishment contrived to construe the Supreme Court’s message as ambiguous. The state-bar-court system is their playground and their livelihood. Never do official bar-defense attorneys appeal to the federal courts. That would violate their silent contract with the Office of Chief Trial Counsel.

California lawyers should take the Supreme Court’s order—especially its omissions—as an official announcement that it will overlook unjust prosecutions and excessive verdicts. If there is any legal remedy for unjust treatment by the California State Bar, it lies in the federal courts—where official bar-defense counsel will never tread.

95th Installment. The Stephen A. Glass Matter and the Core Values of Legal Ethics

2012-06-05T21:24:00.002-07:00

2^nd in Stephen A. Glass series

Even status-quo ethicists universally reject the California State Bar Court’s decision to admit compulsive liar Stephen A. Glass, who wrote scores of fabricated stories for the New Republic news magazine while he financed his law education from the booty. Many of these ethicists are guarded in their conclusions, but attorney Brian Ketterer, who is not an ethicist, deals with the problem directly to advocate a per se rule against the admission of serious repeat transgressors. The Bar Court’s incompetence warrants taking the proposal seriously, although the official ethicists are too insular even to comment. Whereas the proposal expresses the near-universal distrust of State Bar discretion, blameworthiness for character-and-fitness purposes must be measured by standards relevant to the practice of law; some misdeeds—such as drug offenses—may even be entirely irrelevant.

A few core values and moral capacities are indispensable for the ethical practice of law. Prefiguring the all-important loyalty to client, the central value for law practice is loyalty to those in whose interest the profession properly functions, and the expression of loyalty most relevant to law practice is honesty within that commitment. Loyalty and honesty together add up to more than the sum of the two parts. Neither loyalty nor honesty alone is an unconditional virtue for attorneys, who aren’t completely forthright with opponents or even judges and who inevitably have conflicting commitments—attorneys’ commitments to family, for example, will conflict with devoting their whole time for client benefit. What distinguishes the ethical requirements befitting attorneys’ exercise of agency on clients’ behalf is the duty to be completely honest in the context of the agency, telling their clients the whole truth and honoring the promises accompanying the representation.

Prior conduct expressing disloyal dishonesty should be the lynchpin of character-and-fitness screening. Glass’s twofold dishonesty illustrates how different forms of dishonesty should bear different weights in character-and-fitness hearings: Glass lied to his editors and he lied to his readers, but deceiving readers is by far the more important dereliction, a distinction going far to clarify the crux of the ethics fundamental to practicable legal representation. Glass’s relationship with his editor was just another business relationship, but his relationship with his readers goes to the heart of the ethics proper to journalism—the ethics required for practicable journalism. The chart below (click to expand) depicts the parallels between journalists and attorneys.

Glass was forced to admit performing acts of disloyal dishonesty impugning fundamental journalistic ideals. A journalist doesn’t lie to his readers for the reason an attorney doesn’t lie to his clients. That conduct is doubly disloyal: disloyal to readers (or clients) and disloyal to the profession’s essential ideals.

94th Installment. Esteemed Legal Ethicist Richard Zitrin Lambasts California State Bar

2012-04-21T21:17:00.001-07:00

Convergence

Incredibly, though, the Bar's Office of Trial Counsel (OTC) has a history of both under-prosecuting cases, such as those I cited, while at the same time over-prosecuting others. (“Why Bar Sometimes Overreaches on Discipline,” The Recorder, Sept. 30, 2011.)

So says respected legal ethicist Richard Zitrin, law professor at University of California, Hastings. (HT: Kafkaesq.) Does the message sound familiar? In the Second Installment to kanBARoo court in 2007, I wrote:

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as over-zealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than over-zealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.

Synopsis

In a three-part series in The Recorder running in September and November 2011 (most unfortunately, subscription only), Zitrin explains the incompetence, insularity, and self-protective mindset that induces the State Bar to suffer disloyal attorneys, while it prosecutes vulnerable nonconformists.

Zitrin’s first explanation is that the State Bar prefers the easy way. It is too incompetent to prosecute many of the more important cases (Ronald N. Gottschalk comes to mind), so it picks cases based on their probative triviality.

Prosecutions of lawyers who have seriously and serially harmed clients, while hardly daunting, can be fact-intensive. Prosecutors must prove that a manifestly unfair transaction with a client was “really” theft or embezzlement, or that apparent abandonment of the client was not something else—an uncooperative client, miscommunication or change of address. None of these proofs involves rocket science, but they do require competent trial lawyers [which, as Zitrin documented earlier, the State Bar lacks]. And they are far more difficult than technical trust-fund violations, where the rules are applied strictly and the proof is readily at hand through bank records. No wonder OTC loves prosecuting those slam-dunk violations.

Zitrin’s second explanation resembles my polemic against the State Bar’s appearance-of-impropriety doctrine. Zitrin writes:

The Bar has always been highly sensitive to how it’s perceived. Or, more accurately, how it perceives it’s being perceived. So if a judge complains about a lawyer, even if OTC doesn’t see a violation it will likely examine the case closely. If there is political pressure—or lots of publicity—then even more scrutiny is likely.

Zitrin’s third explanation corresponds to what I call bureaucratic reflex, not judging the case on its facts but on a moralistic archetype of wrongdoing.

The highly insular State Bar does not like it when lawyers act outside the box—or, more accurately, outside their box. It has long been primed to go after people it considers outliers. Too often, OTC resorts to the “catch-all” discipline provided not in the ethics rules but in the State Bar Act, originally enacted in the 1930s. Particularly appealing to prosecutors are Business & Professions Code § 6106 (“The commission of any act involving moral turpitude, dishonesty, or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a [crime] or not, constitutes a cause for disbarment or suspension”) and § 6068, subd. (a) (“It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.”)

Zitrin illustrates the prosecution of outliers with matters involving famous attorneys in two cases where the State Bar was reversed by the California Supreme Court: Belli v. State Bar (1974) 10 Cal.3d 824 and Jacoby v. State Bar (1977) 19 Cal.3d 359. The recent prosecution of Philip E. Kay is the current version—after the Supreme Court stopped reviewing State Bar matters.

Zitrin assesses the current state of affairs:

The State Bar has a proven track record of mediocrity in dealing with discipline. Even with the advent of the professionalized State Bar Court, OTC’s modus operandi has not appreciably changed: too many serious cases falling through the cracks; too many “easy” prosecutions resulting in harsh discipline; too many of the worst offenders still in practice.

And Zitrin offers a bleak prognosis:

Even assuming that staff can be improved and professionalized from within, changing OTC’s law firm culture will be far more daunting. There’s no reason to think that the State Bar’s insularity and opacity will change; no one I talk to within the Bar showed the slightest interest in that.

Limitations

Although Zitrin’s critique shows that even some official ethicists are catching on, Zitrin’s is less thoroughgoing than kanBARoo court’s; he's dismayed by the prosecution of outliers but seems more concerned about expenses than attorney victims. Regarding one case, where a prosecutor was ordered to investigate whether a state lawyer could be disciplined for exposing the fraud of a nonclient state boss, Zitrin comments, “What a waste of time.” But intimidation, not time, is the main issue.

Zitrin is overly impressed with some prosecutors, such as Jeffrey DalCerro (head of the San Francisco Office of Trial Counsel), whom Zitrin terms “long committed to busting bad guys.” Zitrin fails to grasp that self-righteous moralism encapsulates State Bar "insularity and opacity."

Most importantly, Zitrin places excessive confidence in the California Supreme Court. He proposes abolishing capital punishment to save professional self-regulation by dramatically reducing the Supreme Court's caseload, so it can effectively supervise the Bar. A worthy proposal in itself, abolition of capital punishment, but Zitrin doesn’t understand that the Supreme Court’s special relationship to the State Bar (which functions as its administrative arm) creates a conflict of interest which incapacitates scrutiny. (Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative"]; Friedman & Gaylord (1999) Rooker-Feldman, From the Ground Up, 74 Notre Dame L. Rev. 1129, 1132 ["there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs"].)

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

2011-12-09T01:20:00.001-08:00

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 Appeals 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

2011-11-25T13:00:00.002-08:00

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 attorneys lacking knowledge of an area of law will deceive clients about their 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 that—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, but 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-exploitative 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

2010-10-22T02:13:00.001-07:00

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.