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

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

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

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

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

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

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

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?

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

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

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

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

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)

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

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.