Saturday, December 6, 2014

110th Installment. The judicially unconstrained California State Bar: The Marilyn S. Scheer Matter

Review petitions filed by State Bar respondents must be considered by the California Supreme Court, that being the only form of review by any court of record, as required by the 5th and 14th Amendments for deprivation of a property right. The California Supreme Court last granted a respondent’s petition for writ of review 14 years ago. If the California Supreme Court fails even to consider review petitions, there’s created a federal question. 

Marilyn Scheer has a petition for writ of certiorari before the U.S. Supreme Court and a 1983 action on appeal before the 9th Circuit. She argues, among other meritorious contentions, that it defies credibility that over 14 years and hundreds of petitions, the State Bar Court has committed not a single reversible error. She concludes that the federal courts should overturn In re Rose (2000) 22 Cal.4th 430, which established the Supreme Court’s absolute discretion to deny formal review, that process alone compelling the court to issue a written opinion. 

While the facts overwhelmingly point to the absence of judicial oversight and the deprivation of federal due process for California State Bar respondents, Scheer’s case is no assured win. When the California Supreme Court rubber stamps a Review Department decision by denying a respondent’s petition for writ of review, it certifies that it has given the petition its conscientious consideration. For any federal court to conclude that California’s high court hasn’t actually even considered the rejected petitions is to accuse the justices of dishonesty. The federal courts will be reluctant to level, for the sake of California State Bar respondents, an accusation of that moral magnitude against their California brethren.

Still, Scheer’s argument, based on 14 years without review, is powerful. Meanwhile, the California Supreme Court’s position is so facially untenable as to require that we explain how it got in this legal predicament. Wouldn’t it be worth the Supreme Court’s time to take at least a single case during the whole 14-year period following In re Rose?

No, it probably would not. I’ve shown that in its dealing with the State Bar, the politician judges on California’s Supreme Court are concerned only with managing the court’s public image. There’s no good PR in absolving lawyers.

I’ve long maintained that the California State Bar is not fundamentally worse than the state bars throughout America. In the licensing and discipline of lawyers, there’s no serious policy federalism or even islands of competence. But in the de facto absence of any judicial review, California stands alone. This must weigh in Scheer’s favor in federal court.

Saturday, November 15, 2014

Interlude 28. Should cops be permitted to join the bar?

[Based on Authorized police prevarication as a clue to the nature of the state.]

Acts of deceit, including those committed outside of the practice of law, prove a bar-candidate’s moral unfitness. (The Stephen R. Glass matter illustrates the point.) How does the state-bar establishment approach officially legitimate occupations that require that their practitioners routinely engage in acts of deceit? A nice theoretical question, you may say, but surely, no civilized society classifies occupations as “legitimate” when they require acts of moral turpitude. It's practically a self-contradiction.

But one occupation is freely permitted entry to the state bars despite having deceit at the core of its real job description: the police. American cops enjoy a license to lie both to the public and to suspects, interrogations included. Not only do they have this license, but their style of work depends on deceit. No cop can refuse on principle to resort to treachery, even against random members of the public, if at stake is a potential conviction.

Cops will retort that their deceit is socially useful. But so will many others who commit acts of moral turpitude!

Cops (and former cops) don’t belong in the bar, and their admission is the ultimate state-bar hypocrisy.  

Friday, May 2, 2014

109th Installment. How vindictive is the state-bar establishment?—Clues from Indiana’s Ogden matter and the avaricious designs of the California State Bar

Previously, on the Ogden matter: 104th Installment. State bars assault the First Amendment: The Paul K. Ogden Matter in Indiana

New developments in the Paul Ogden Matter

The vindictiveness of the state bars is revealed only when lawyers criticize them, which—due to this very vindictiveness—happens rarely. If lawyers withhold criticism because they fear the State Bars, how can opponents prove the ordinarily silent constraint on criticism: state-bar retaliation? We must rely on courageous lawyers like Paul Ogden to take the brunt of state-bar oppression. Even the original charges against Ogden, formally acts of retaliation on behalf of a corrupt judge, substantively were retaliation for Ogden’s public criticism of Indiana’s Disciplinary Commission (D.C.) when he demonstrated the D.C.’s big-law bias, the charges having immediately followed the criticism ten months after Ogden’s (private) criticism of the judge. Recent developments in the Ogden matter definitively prove D.C. retaliation. The D.C. is acting with impunity in pursuing clear vengeance for itself by serving Ogden with another charge, the illegality blatant.

Behind the new charge is a dramatic story: because of the uncriticizable incompetence of the Indiana judiciary, a party to a family-law matter suffered 14 bullets. The victim had asked Ogden to represent her in filing a legal document removing a family-law court judge, who failed to rule on a motion within Indiana’s three-month deadline. Ogden couldn’t undertake the prospective client’s representation because of conflict of interest, this being the same judge who had complained against him, alleging ex parte communication in Ogden’s already pending D.C. matter. He provided informal assistance, the “lazy-judge praecipe” was filed and should have compelled reassignment. However, the scoundrel of a judge had his clerk delay formal receipt of the praecipe to pretend to have ruled, and the ruling was harsh and retaliatory against the woman, encouraging the other party in his murderous appetites and denying the eventual victim writ protection.

That the judge had manipulated the filing times isn’t speculation; even the Indiana Supreme Court agreed and reassigned the case. But what about the invalid order? The Indiana Supreme Court completely neglected that issue. Ogden blogged this, for which he was charged with … disclosing confidential information. 

You needn’t be a lawyer, only listen to the daily news, to know that client wishes govern disclosure, and the severely wounded victim actually confirmed from her hospital bed that she wanted the case publicized. (See Indiana Rules of Professional Conduct, rule 1.6.) Yet, without even confirming them, the D.C. brought charges for breach of client confidentiality—utterly ridiculous but, apparently, the best it could manage.

California implications

The State Bars across the country are far more similar than different. Even though California has distinct rules (which it is moving to conform still more to the national standard), Bar practices are everywhere much the same. The “laboratory of the states” is sacrificed, but the uniformity lets lawyers generalize across jurisdictional lines, important where dispositive evidence of bar retaliation is, by nature, hard to acquire. (As I wrote in Installment 22, there was a probable element of retaliation in my Bar case in 2007, but the evidence is much stronger in Ogden.)

California lawyers should worry more about retaliatory State Bar practices after Ogden. The awareness that the state-bar establishment is a vindictive claque is particularly important now, since the California Bar is trying to expand its jurisdiction: it lobbies for the right to punish nonmembers—and to retain the fines it proposes to obtain—for the unauthorized practice of law. (HT Kafkaesq.) The California Bar complains its jurisdiction must expand because the Justice Department is reluctant to prosecute (what the Bar considers) unlawful practice. For at least the third time, the California State Bar fraudulently asserts the prerogatives of a state agency.

The California Bar proposes to apply the same biased fee system, wherein respondent pays attorney fees if it loses but the Bar never pays anything. This will no doubt serve as a tool of vengeance against former attorneys incurring the sadistic rage that the state-bar establishment harbors for all principled opponents.

Monday, February 17, 2014

108th Installment. Three strikes against the California Supreme Court: Forsaking standards of candor for the sake of political correctness

Comparing the cases

Many conclusions are obvious from the three January 2014 State Bar cases reviewed by the California Supreme Court; but they were obvious years ago. Among them: the Supreme Court doesn’t review cases to reverse convictions, and the Supreme Court is supremely concerned with managing its status and manipulating its public image. But some new trends do present, so I won’t belabor the obvious. The most important and unexpected trend is the Supreme Court’s refraining—in each of the three cases, Garcia, Grant, and Glass—from inferring moral turpitude from deficient candor during the hearings themselves.

A related trend: the prevalent defense in California State Bar moral-turpitude matters may seem to be “My lawyer said it was OK.” At least that’s so if we generalize from the three decisions. Although the recipients were, in all cases, trained lawyers, they, in each, blamed bad legal advice for their egregious conduct (Glass and Garcia) or false confession (Grant). The court never generalized (or even noted) the issue of whether lawyers can rely on counsel for their ethics; how could it, when no consistent policy can be extracted from the results, the court’s placing considerable weight on the excuse, in one case, and discounting it, in the others. The court’s doctrinal evasion and inconsistency reveals, nonetheless, a tenacious purpose: increasing its liberty to make political decisions (without inconvenient ethical considerations) and increasing its opportunity to issue “politically correct” dicta. In each case, the court should have found moral turpitude based on the candidate or respondent’s conduct in the hearing process itself. The court refrained from repudiating the lawyer-blame theory, to avoid either deciding against the candidate (Garcia) or sacrificing opportunity to expound its politicized dicta (Grant and Glass). The court (expressly in Garcia, tacitly in Grant and Glass), allowed the lawyer-blame defense to excuse lack of candor.

A final point for comparing the cases is the inconsistent role of character witnesses, who are taken very seriously in Garcia and given no apparent weight in Grant or (ultimately) in Glass.

In re Garcia

The most flagrant acceptance of the blame-the-lawyer excuse was in Garcia, the candidate who is an illegal immigrant. After living in Mexico for eight years, Garcia returned to the United States (where he had previously been brought illegally) in search of employment. Garcia landed the job that got him started toward respectability by lying about his immigration status, but he avoided the bar-examiners' questions about the job application by claiming his memory of the events was hazy. (Who could fail to remember obtaining their first employment under conditions of illegality?) He subsequently checked with the former employer to determine whether a record of the application endured, and on finding it did, he supplied a copy to his attorney, who advised him to withhold the information. Two weeks later, Garcia’s attorney had (for reasons unremarked) a change of heart, and he disclosed the evidence. The court should have denied Garcia admission for this flagrant lack of candor.

But the Garcia case was a political event, staged by the entire California establishment. If you’re chafing at the bit to give illegal immigrants citizenship, it’s inconvenient to admit that their unlawful presence is inconsistent with their practicing the best ethics. Garcia was a heavily networked test case for open-borders jurisprudence; he even had a pro bono lawyer (the one who supposedly provided the bad advice and who apparently isn’t being targeted for discipline for advising the candidate to suppress evidence).

By disregarding Garcia's turpitudinous lack of candor as well as ignoring its implications for the credibility of his other claims, the court could focus on subjective interpretation. The opinion apprises readers that the Bar had conducted a very thorough investigation; then, why hadn't the investigation uncovered Garcia’s deceitful application? The opinion extols Garcia’s character references, such as his law professors, who testified to his sterling moral character; but what does a night-school law professor learn of a student’s moral character? With a networked candidate like Garcia, character witnesses are inevitably favorable; they should be discounted accordingly—especially when the court is presented with immediate evidence of the candidate’s lack of candor.

In re Grant

Before the Supreme Court reversed, the Review Department had found a failure of proof that Grant knew child pornography was saved to his computer, despite Grant's pleading guilty to possessing it knowingly. Grant explained that he had erred in his plea: he—and his lawyer—had believed that the offended statute equated bare possession with knowing possession. The excuse is preposterous.

The Grant court downplayed Grant’s disingenuousness because condemning deceptiveness isn’t as opportune as espousing political correctness. The court expatiated on how possessing child porn demonstrated moral turpitude, to twist the meaning of that term, disassociating it from fitness to practice law.

The court’s arguments, the standard fare on the subject, are worth rehearsing because the court evidently believed saying it important. The court denied that possessing child porn is a victimless crime because the porn industry (like any industry) is driven by a market; but being part of an abstract “market” doesn’t constitute a proximate cause for the production of pornography. The court added the second standard argument: possessing porn perpetuates the child’s degradation. This invokes an artificial harm that doesn’t bear on the child’s actual well-being. To prescribe that the consumer of child porn is guilty of bestowing market share and perpetuating degradation is, essentially, to create a thought crime: the same logic applies regardless of the existence of a physical representation. If the user trashes the images, should he not be prosecuted if he doesn’t take measures to forget them? The creation of these purely mental images is the end goal of the pornography industry, but that never justifies punishing the mere consumption of information. (Moreover, how can you ban a practice in a democracy and prohibit citizens from exploring the object of the ban?)

Laws against consuming images (or texts) are blatantly unconstitutional. As Justice Brennan wrote in dissent in the case that, regrettably, validated child-porn-possession laws, Osborne v. Ohio (1990) 495 U.S. 103 [quoting Stanley v. Georgia (1969) 394 U.S. 557]: 
If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.
Although the California Supreme Court’s decision was predictable, to conclude that possessing child porn is moral turpitude takes a step further than its simple criminalization. The Osborne court’s mistake was to apply an ordinary balancing test (rather than a clear-and-present-danger test) to a core First Amendment right. The California Supreme Court turned the policy decision into a moral manifesto, one corresponding to the current politically correct California orthodoxy.

Grant produced character witnesses, all the more impressive because of his own status as a “registered sex offender”; the court downplayed their significance.

In re Glass

Glass, of course, never had a chance, public image having become the overriding purpose of character-and-fitness evaluations. From what planet hails an observer who thinks the Supreme Court will permit the world to joke that Glass was too dishonest to be a journalist—but is fine as a lawyer? Glass showed remarkable lack of candor about the extent of his cooperation in disclosing his falsehoods, blaming his failure to make full disclosure on, whom else, his lawyer. Glass did worse than claim that he delegated to that attorney performance of his promises about the clean-up effort: he misrepresented his (purported) acts of delegation as his personal compliance. Glass had also failed to reveal many of his lies when he applied to the Bar in New York.

But denying Glass admission for lack of candor doesn’t appeal to the demagogic temperament of California’s Supreme Court justices. Why waste an opportunity on mundane defects of character when there are grave matters of political incorrectness to denounce? By paying scant regard to Glass’s lies to the court, the court expanded its opportunity to incite political sentiment. It exposed Glass as a racist, some of his published lies having put blacks in a disagreeable light! The court again created a thought crime—the objectionable racist motive—with which it compounds Glass’s bare perfidy to his readers, much in the manner of hate-crime laws, which are also obviously unconstitutional. The court implies that those with Glass’s views on race are unfit to practice law.

Glass’s character witnesses had been worshiped by Judge Honn in the Hearing Department, but they were often disdained by the Supreme Court. (But some of Glass’s character witnesses were undeservedly respected, such as his psychiatrist, who offered an optimistic prognosis completely at odds with the evident reality.) Some of their comments truly discredited these witnesses. A Georgetown University law professor couldn't grasp the propriety of inquiry into Glass’s having claimed credit, on his law-school application, for journalistic awards that Glass garnered by means of fraud; the professor became indignant. But while the fact is relevant that Glass’s very standing for bar admission depends on his lies in getting accepted to law school, the point could also be made (but wasn't) that Garcia, too, got his start through an act of undeniable moral turpitude.

The Glass court refrained from drawing conclusions about the trustworthiness of orchestrated character references.

In its pretended supervision of the State Bar, the California Supreme Court is concerned only with its own posturing, now expressed in a strident political correctness, which has become so important to the Supreme Court that, for the sake of its expression, the court will downplay even candidates or respondents' lack of candor, letting their lawyers assume blameless responsibility.

Sunday, January 26, 2014

107th Installment. Is being an unlawful immigrant moral turpitude? — California’s Sergio C. Garcia matter

Plutocratic open-borderism contended only with authoritarian law-and-orderism when California’s supreme court—the first in the United States—decided to admit an illegal immigrant. (See In re Sergio C. Garcia (2014) _ Cal.4th _.) The Supreme Court parroted the open-immigration line of California’s economic and political elites; the only opposition, an amicus brief by a former State Bar prosecutor, reflexively counterpunched that a lawyer must obey all laws. Both avoided serious ethical analysis, pandering to politics.

The Garcia court’s moral-turpitude analysis of illegal presence was cursory. The seminal case delimiting the moral-turpitude standard had exonerated candidate Hallinan of bad moral character by exempting two categories of alleged wrongdoing: Hallinan had participated in civil disobedience supporting the civil-rights movement, and he had been in various physical scrapes. (See Hallinan v. Committee of Bar Examiners of State Bar (1966) 65 Cal.2d 447.) These categories correspond to the main instances of serious illegal conduct deemed, in California and most jurisdictions, not to constitute moral turpitude: disobedience to the law for idealistic reasons and “intemperate resort to fisticuffs.” (See, also, Schware v. Board of Bar Examiners (1957) 353 U.S. 232.)

To excusable idealism and volatile conduct, the Hallinan court contrasted five offenses that always demonstrate moral turpitude: fraud, perjury, theft, embezzlement, and bribery. Their commonality is that they bear on “the individual's manifest dishonesty.” The Hallinan court had enumerated the five offenses to provide basis for analogy, but the Garcia court merely noted that illegal immigration isn’t on the list, and (having sufficient sense not to analogize to civil-rights activism) the court analogized Garcia’s illegal presence to Hallinan’s fisticuffs. Had the Garcia court followed the Hallinan court in explicitly characterizing “fraud, perjury, theft, embezzlement, and bribery” as offenses involving dishonesty, it could not easily reach its conclusion that illegal immigration does not constitute moral turpitude.

The Garcia court didn’t analytically compare illegal immigration to crimes of a “fraudulent nature,” on the one hand, or, on the other hand, to idealistic transgressions or to acts showing “a quarrelsome disposition” and “a hasty and ungoverned temper.” (Hallinan, supra, at p. 472.) Had it made the comparison, it would be obvious that illegal presence does not resemble brawling and does resemble theft: both illegal immigration and theft involve illegal appropriation of resources. Violating immigration laws isn’t victimless, since these laws are resource restricting. An example of how immigration laws restrict resources is afforded by Garcia’s admission that he, at least once, had obtained employment by misrepresenting his immigration status. (Garcia, evidently, wasn’t expected to show “remorse” regarding injury to the applicant who would have gotten the job if Garcia hadn’t lied.)

Illegal-immigration’s best analog is tax evasion. To be guilty, one need not tell express lies. (In re Hallinan (1954) [different Hallinan] 43 Cal.2d 243 [income-tax evasion with intent to defraud is moral turpitude].) Like illegal immigration, no one deems tax evasion victimless despite that the individual victims of the fraud can’t be identified. Both involve a dishonest failure to satisfy legal obligations, with the motive that the wrongdoer appropriate resources lawfully belonging to others.

The Garcia court emphasized that illegal presence isn’t itself a crime (as, it also pointed out, neither was Garcia’s driving without license or insurance coverage). But the Stephen R. Glass matter shows that, just as crimes aren’t necessarily acts of moral turpitude, acts of moral turpitude aren’t necessarily crimes.

Sunday, December 15, 2013

106th Installment. Lawyer dues—not penalties imposed on respondents—should fund disciplinary tribunals

California may be unique in unconstitutionally allowing its attorney guild to enforce its self-adjudicated costs as a judgment, but the universal state-bar practice of charging costs to respondents (regardless of how the state bars can collect them) derives from changes in the criminal law that, despite their legality, damage the system’s integrity: policies of victim restitution and social restitution. The critique of social-restitutionary state-bar costs begins with its prototype, victim restitution in criminal law, of which there has accumulated much more legal and societal experience.

Victim restitution in criminal law

The award of state-bar “costs” (in most jurisdictions) is sequel to the practice, itself growing out of victim restitution, of appropriating from criminal defendants an array of “imaginative fees.” (HT for phrase to Rosenthal and Weissman, below.) Wildly popular (despite its hollowness, where only 3% of restitution fines are paid), victim restitution led inexorably to charging convicted defendants for every manner of administrative expense (such as their room and board). If the criminal must make restitution to the designated victim, why shouldn’t he compensate society, too? Once the policy became acceptable, the rush to solve budgetary shortfalls by taxing criminal defendants became irresistible. (Former Chief Justice George in California promoted such fundraising.) The first wave started in the 1970s and culminated in the 1980s in the widespread use of restitution in an amount apportioned to the defendant’s means. The second wave occurred in the 1980s and 1990s, when full restitution widely became mandatory and numerous fees were imposed.

This was the Reaganite “victims’ rights” movement, which included other disruptions—such as victim-plight testimony during sentencing—of reasoned jurisprudence. “Victims’ rights” was largely a sop to victims outraged by plea bargaining, which flowered in the 1970s after the U.S. Supreme Court, in Brady v. United States (1970), legitimized it. Defendants were to be charged the costs of their crimes to their victims, who were also allowed to influence sentencing by diatribe.

Restitution and fees are lauded despite the lack of evidence of their rehabilitative effectiveness and their scorn for one of criminology’s established principles: crime is born of poverty. Eighty-five percent of criminal convicts are indigent. Restitution in criminal law purports to teach the lesson that criminals are personally responsible for their crimes, whereas, in fact, crime is fundamentally a product of social conditions. Society cannot teach criminals to accept rather than deny responsibility when, in the very process of this attempted indoctrination, society denies its own responsibility for causing crime.

Restitution expresses and reinforces the ideological denial of poverty’s fundamental role in crime. The fetishism of “personal responsibility” makes it easy to treat the primary victims of harsh economic inequalities as if they were the ones who should provide restitution. This ideological denial helps explain the tolerance of the American public for mass incarceration.

The availability of compensation for the victims of criminal acts is a form of social insurance. Restitution (3% recovery rate) is insufficient.

It is also socially unjust: victim restitution amounts to a highly regressive tax. This became completely obvious with the 1996 federal law (and similar measures in most jurisdictions, including Penal Code § 1202.4 in California), which required judges to order full restitution regardless of the criminal defendant’s ability to pay, but regressive taxation is inherent in restitution in criminal law, since the overwhelming majority of criminal defendants are indigent. If compensation for targets of crime were treated as a social-insurance issue (as is the European tendency), it would be funded through progressive taxation.

The ultra-individualist complexion of victim restitution helps state actors deny that the development of a sophisticated and nuanced law through courtroom contests is a public good. The numerous “imaginative fees” that the restitutionary mentality spawned amount to a tax on the litigation of criminal allegations. Although “victim rights” was a reaction to universalizing the plea bargain, it has served as its handmaiden by providing another incentive to settle criminal cases before the fees accumulate, at the expense of broadening the corpus of law on which a common-law system depends.

The state-bar ramifications of criminal law’s victim-restitution practices

The “imaginative fees” that restitution spawned in criminal law have been avidly adopted by the state bars, which routinely charge investigation, litigation, and court costs to respondents, including costs pertaining to counts eventuating in acquittal. These “costs” easily run to thousands of dollars, often to over ten thousand—a high price for bar counsel and bar-court judges’ incompetent legal work. They suffer all the demerits of criminal law’s restitution-inspired measures: denial of systemic causes of infractions, regressive taxation, and stunted development of law.

While Bar “costs” are like restitutionary fines in denying the primary role of the system in engendering offenses—whether crimes or ethics’ infractions—they differ in manner. The role of system in legal ethics is not so much to cause infractions but rather to self-servingly define them. (For example, over-prosecuting negligent misappropriation and violation of court orders while disregarding fraud by employers and the sacrifice of client interests to the judiciary’s interests.) Yet, the direct economic causes of ethical infractions shouldn’t be entirely ignored; notably, the state bars have failed to bring cases against law-school administrators who have deceived students about their prospects in law, helping create a cutthroat economic climate.

State Bar “disciplinary costs” fall as a regressive tax on those least able to pay. Indigence may not be an important cause of legal-ethics violations, but once their cases come to issue, many attorneys who face discipline charges are impoverished. The reason is that the filing of a notice of charges is public information, which almost invariably cripples a respondent’s law practice. Until their final hearing, respondents are presumed innocent, yet they are taxed with costs that deter them from upholding their innocence.

Even more than for criminal law, which has enjoyed a long evolution, the disincentive to litigate cases stymies the development of bar law. Bar law remains primitive because of the avoidance of real contention, and bar “costs” are an important mechanism for enforcing legal blandness. 


An attorney-discipline system (supposedly) serves the entire profession and, accordingly, should be funded by dues-paying lawyers.  As it most serves the most profitable law firms, an ideal bar would tax its members progressively—and certainly wouldn’t extort funds from beleaguered state-bar respondents.


Rosenthal, A. and Weissman, M. “Sentencing for dollars: The financial consequences of a criminal conviction.” (2007)

Wednesday, November 20, 2013

105th Installment. Humiliated California State Bar tries to corrupt the Franchise Tax Board: The search for a sufficiently despicable debt collector

Reeling at exposure of its partnership with debt-collection thugs at Wakefield Associates, the California State Bar now overreaches by trying to fraudulently manipulate tax collection. Rather than, as before, delegating to gray-market criminals the collection of its fake trial, litigation, and investigation costs, the Bar will ask California’s tax collectors to hand over any refunds due these respondent “debtors.” This collection method is used for back taxes and judgments owed state agencies (Gov. Code, § 12419.5), but as the U.S. Supreme Court held, the California State Bar is not a government agency for the purpose of adjudicating members’ federal rights. (Keller v. State Bar of California (1990) 496 U.S. 1, 11.) By treating “costs” as an ordinary judgment owed California, the State Bar treats its unilateral claims for money owed as a real court-judgment’s equal, flagrantly violating lawyers’ federal right to due process.

The illegality of the State Bar’s collection methods can be clearly understood from two legal histories: 1) the changes in methods the Legislature has authorized for collection of the State Bar’s costs and 2) the State Bar’s previous attempt to misappropriate the prerogatives of a “government agency.”

Before 2004, the State Bar could recover costs from lawyers by only a single means: conditioning readmission on payment; but with the passage of Business and Professions Code section 6086.10, the State Bar unconstitutionally acquired the prerogative to enforce its claims through the courts without a real judgment—without even any process for its lawyer victims to contest the State Bar’s invoice. Why did these changes wait until 2004? Because there are decisive legal reasons to deny the State Bar use of coercive collection methods. To allow the State Bar to recover based on its own edict is to deny respondent lawyers their due-process right to an impartial tribunal: constitutionally, the State Bar can’t act as both a respondent’s opponent and as adjudicator of cost claims. (Nor can this role be filled by the California Supreme Court, since it functions as the State Bar’s boss, this role distinguished from its being the state court of last appeal.)

The State Bar’s overreaching raises the same question the U.S. Supreme Court answered in Keller, a case also illustrating how distant from the legal mainstream—how extremist—is the California Supreme Court when it comes to supporting the State Bar’s goonish methods: in Keller, the U.S. Supreme Court rejected the California Supreme Court’s decision unanimously. Keller invalidated the State Bar’s practice of shamelessly using members’ dues for political propaganda. Political use of tax dollars by state agencies is permitted, and the California Supreme Court had held that the State Bar was entitled to its political spending because California law terms it a state agency. (See Keller v. State Bar (1989) 47 Cal.3d 1152 [reversed].)

This false characterization was refuted by a three-member minority of California Supreme Court justices and a unanimous Supreme Court of the United States. The State Bar can be a “government agency” for some state-law purposes, but when members' federal rights are at issue, it should be treated as a private club. Its most important differences from a “government agency” are that the State Bar is run, not by the public, but by its members; and the State Bar is financed, not by taxes, but by members’ dues. Both the U.S. Supreme Court and the California high-court’s minority analogized the State Bar to a labor union. (I think the prohibition on political spending is unfortunate as applied to labor unions, but that’s another question.)

Now, take the labor-union analogy a step further. Imagine that a union tried to levy on debt it unilaterally claimed a union member owed. That’s what the State Bar (with the State Legislature’s connivance) proposes. A “judgment” for "reasonable costs" issued (as a blank check) by the Supreme Court in its Bar-supervisory capacity is as unconstitutional as was the State Bar’s political propaganda.

Thursday, November 7, 2013

Interlude 27. California Supreme Court vs. Stephen R. Glass: A tale of competing hypocrisies

3rd in the Stephen R. Glass series.

Yesterday, the California Supreme Court heard oral argument on the case of Stephen Glass; comments by the justices raise the question: who—Glass or the Supreme Court—is more self-serving. As kanBARoo court confidently predicted, the court is determined to deny Glass admission, but instead of using the occasion to uphold the centrality of honesty with clients (and, analogously, with Glass's deceived readership), the justices stressed Glass's duty to judges. (Source: The Recorder, “Court Has No Happy Ending for Infamous Fabulist,” Nov. 6, 2013.)  Justice Joyce Kennard: "As an officer of the court, should we believe whatever you tell the court?… A judge by necessity would sometimes have to rely on the utterances of an officer of the court." The court also used the opportunity to revive the antidemocratic (and perhaps unconstitutional) tenet that “being admitted to practice law is a privilege.” (Justice Kathryn Werdeger.)

Rarely do we obtain this glimpse of the justices’ conception of legal ethics as fundamentally a tool serving judges.

The Supreme Court justices followed In re Gossage (2000) 23 Cal.4th 1080, which holds that a candidate for admission who has committed acts of moral turpitude must demonstrate his rehabilitation by "exemplary conduct." The California Supreme Court indeed takes seriously its "practicing law is a privilege" authoritarianism: the Gossage court held, "Unlike in disciplinary proceedings, where the State Bar must show that an already admitted attorney is unfit to practice law and deserves professional sanction, the burden rests upon the candidate for admission to prove his own moral fitness." 

The Gossage matter is instructive in revealing how the Supreme Court exploits no-brainer cases like the Glass matter to impose a special moralistic regime on lawyers, with strictures unrelated to the core values of legal ethics. Gossage, even more clearly (if possible) than Glass, was a psychopath: he was convicted of a brutal voluntary manslaughter; he forged documents and, over a period of years, engaged in larcenous deceit of his associates. Like Glass, he lied about his history even as he tried to demonstrate his reformation.Yet, the Gossage court took the opportunity to drag into the case the applicant's Vehicle Code violations, including his citation for not installing seat belts. The court also complained of his failure to attend the resulting traffic-court hearings. These infractions don't relate to ethical failings; the attention they receive reveals the court's sheer class bias (although the immediate targets were wealthy enough): working people in California often must try to evade payment of traffic tickets.

The Glass and Gossage matters both illustrate the California State Bar Court’s legal superficiality. In each case, the Bar Court was prepared to admit the applicants, due to its judges' flagrant impressionism. Favoring impressive character opinions, which psychopaths easily garner, they ignored facts. Also evident is that Judge Honn, among others, learned nothing from Gossage.

The same State Bar Court that is so impressed by high-status witnesses supporting dishonest applicants will be unimpressed by honest applicants (and respondents) who lack social connections. The Supreme Court won't correct those errors, far more numerous. This is the key takeaway from the Gossage and Glass matters.

Sunday, October 13, 2013

104th Installment. State bars assault the First Amendment: The Paul K. Ogden Matter in Indiana

1. Muzzling lawyers under rule 8.2(a).

Judges in Indiana (and in most jurisdictions) are powerful elected public officials, who you would think are better equipped to defend themselves than are typical libellants. Then isn’t it curious that the ABA Model Rules of Professional Conduct, adopted by most jurisdictions (including Indiana), provides:
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (Rule 8.2(a) Indiana Rules of Professional Conduct.)
Making statements you know are false (or with reckless disregard for their truth) is the essence of “moral turpitude,” the term California uses. The version of the moral-turpitude statute used by the ABA Model Rules (and Indiana’s Rules of Professional Conduct) is rule 8.4(c), prohibiting lawyers from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” There’s no ambiguity in rule 8.4(c) requiring restatement of its prohibition of lying as it specifically applies to one target. Are lies better when they target an ordinary citizen or the President of the United States than when they target judges? From any angle, this is preposterous.

The state bars’ justification for this expression of pro-judiciary bias is that “officers of the court” owe a special duty to help maintain the judicial system’s appearance of propriety and integrity: lawyers attacking judges unfairly could erode public confidence in the judiciary.

Inasmuch as judges—through the state supreme courts—ultimately control the state bars, it isn’t remarkable that the rules accord judges special privileges, but imposing a duty on lawyers to maintain a certain public view of the judiciary is flagrant viewpoint discrimination. The public has the right to form its own opinion. Judges don’t have a democratic right to stage-manage their approbation by lawyers!

You might wonder how repeating a rule in a more specific form strengthens it. Are judges really provided special protections against defamation by lawyers—or is the obeisance to judges manifest in rule 8.2 pro forma? Imposition of discipline is reasonable when a lawyer defames a judge (or any citizen), but the protection judges enjoy is special because of the way rule 8.2(a) is interpreted. To show how, I turn to the Paul K. Ogden Matter in Indiana.

2. Vindictive Indiana Disciplinary Commission recommends Paul K. Ogden's disbarment for well-founded allegations of corruption.

The Disciplinary Commission of the Indiana Supreme Court wants to suspend Ogden for a year with no automatic readmission—tantamount to disbarment—for his alleged violation of rule 8.2(a) in a response e-mail (to an opponent party in a concluded probate case). Ogden wrote that the judge was dishonest and should be subject to discipline for his mishandling of the case, its litigation having Bleak Housed the estate. The recipient informed the judge, who demanded an apology that Ogden, standing on his First Amendment rights, refused to tender. The judge complained to the Disciplinary Commission, which had its own reasons to prosecute Ogden, who had blogged to expose the Disciplinary Commission’s almost total failure to prosecute lawyers in middle- and large-sized law firms.

Under the First Amendment, when a party states an opinion that a judge (or any other party) is dishonest, the statement is not defamatory if the party states the factual grounds. The judge took issue with only two facts. Regarding the first, Ogden had claimed that the judge was a friend of a probate opponent’s family and that he had recused himself from another of their matters. The judge didn’t say this (crucial objective fact) was false, only that he could recall no such recusal; he denied he was a friend of the family (which is, apart from the recusal, potentially a matter of opinion). Ogden had received this information from his client, whom he had the right to believe (and who was probably telling the truth); the court files failed to provide the name of the judge who had been recused. No one knows for sure whether the accusation was true, but relating what a client has assured the lawyer is true is hardly reckless; more fundamentally, it hasn’t been shown false.

The judge denied the second factual allegation, which was that the judge had opened the case unsupervised, pointing out that he assumed the case after it was already open. But the judge had maintained the case as an unsupervised probate matter; how it was opened is immaterial. Ogden’s accusation was substantially true.

3. Rule 8.2(a) affords judges special protection at the expense of free speech.

The character of the evidence against Ogden shows how judges receive special protection under rule 8.2(a). If Ogden had been accused of dishonest behavior under rule 8.4, it would be clear that Ogden had been perfectly honest. He criticized the judge on terms he reasonably believed were accurate and were essentially accurate.

The Disciplinary Commission construes rule 8.2(a) not as an anti-turpitude provision but rather as a judicial shield against criticism. First, the state bars shift the burden of proof to the respondent. To prove you’re dishonest, one must prove you a liar; but to prove that you impugned the integrity of a judge falsely, the absence of contrary proof suffices. Second, the Disciplinary Commission proves moral turpitude under a subjective standard, whereas the state bars judge recklessness under rule 8.2(a) relative to what a lawyer “should know,” which isn’t a dishonesty test. You aren’t dishonest for what you don’t know: prior knowledge or recklessness must be shown affirmatively.

Because judges are public figures, the protection from criticism afforded them infringes the First Amendment rights of lawyers. While some jurisdictions place the burden of proof on the defamation defendant, who must prove truth as an affirmative defense, the Supreme Court of the United States holds that liability for defamation of a public figure (such as a judge) must include proof of falsehood.

Another requirement for actionable defamation of a public official is the subjective standard for recklessness. (Times v. Sullivan.)

Other than the ordinary speech that is any citizen’s right, the issue of regulating lawyer speech arises mainly in two contexts. Pending litigation, the subject of Gentile v. Nevada, is a special circumstance; but the recusal-motion context proves the folly in requiring that a lawyer prove every allegation he makes against a judge’s integrity. When you consider recusal motions, it becomes obvious that the attorney’s duty to represent parties is compromised by regulating attorney criticism of judges. How can an attorney represent a client who is convinced that a judge is corrupt if the attorney is subject to disbarment when a hearing officer doesn’t find the allegation substantiated?

In Matter of Dixon the Indiana Supreme Court tries to weasel out of this contradiction by adopting a more permissive standard for recusal motions, appreciating the lawyer’s duty to his client. But allowing exceptions concedes the whole argument. If lawyers are so influential that the judicial system can’t tolerate their attacks on judges, why is the system resilient when the location is a recusal motion, which is of public record (unlike Ogden’s personal e-mail)? And when the Indiana courts hold that criticism of judges must be treated more permissively for some motions, it’s implausible that stifling lawyers’ harsh criticism of judges doesn’t reduce their capacity to represent their clients in other venues (obvious example, discussion among lawyers that might lead to a recusal motion).

4. Disciplinary Commission charges ex parte communication with judge, another frivolous charge.

The Indiana Disciplinary Commission is troubling Ogden over another matter: he is charged with ex parte communication with a trial judge, although Ogden had no pending cases related to the communication, which concerned questions of law. Again the Disciplinary Commission tries to hamstring lawyers. No principle of legal ethics or, for that matter, no part of the Indiana Rules of Professional Conduct prohibits communication with judges about questions of law when no cases are pending. Again, this creates a special regime for lawyers, inasmuch as an ordinary citizen is allowed to write to a judge. To ground this charge, the Disciplinary Commission turned to Indiana’s code of judicial ethics, which commands that judges not receive ex parte communication concerning their cases. Whatever this provision means, it does not forbid lawyers from trying to communicate with a judge about the law like any ordinary citizen might. If Indiana regulates judicial conduct in strange ways, it’s not the lawyer’s duty to avoid unwittingly tempting judges astray.

5. Conclusion.

Transparently, rule 8.2(a) is the judiciary shielding itself from criticism by lawyers. The judiciary’s rationalization is that lawyers are especially influential, but this no way passes muster under the First Amendment. A judiciary that protects its reputation for integrity by silencing lawyer critics (such as Ogden) is one that doesn’t deserve a good reputation. Maintaining a false public image of the judiciary is not a legitimate state interest under the First Amendment.

Rule 8.2(a) is corrupt to the core. Ogden intends to file for certiorari to the U.S. Supreme Court, but SCOTUS is unlikely to hear the case; being that the issues are so straightforward under its First Amendment jurisprudence, the Court couldn’t avoid holding for Ogden. The justices of the Supreme Court are unlikely to break ranks with their state brethren on an issue that, as collateral effect, would decrease judges' status.