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 Appeal had found malfeasance.

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

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

92nd Installment. Ethics of Ghost Blogging

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

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

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

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

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

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

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

Interlude 23. War criminal Jay Bybee purchased exoneration

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

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

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

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

Interlude 22. Against routine public discipline

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.

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

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.)