Monday, February 11, 2008

kanBARoo Court. 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?

One event demolished the State Bar establishment’s effective reliance on disbarment as a mark of Cain, to anchor coercive power: the 5-year disbarment of a sitting U.S. President, when the Arkansas Supreme Court disciplined then-President Bill Clinton, after a majority of the U.S. Senate failed to convict, and not a single Democratic Senator voted for conviction. The outcomes implied that one may be ethically qualified for the United States Presidency, yet lack the morals to practice law in Arkansas, a conclusion that the cynical and the idealistic both must reject. Either the U.S. Senate or the State of Arkansas’s State Bar Court equivalent was out of touch with American morals, and it wasn’t the Senate. Clinton's approval rating soon rose to an unprecedented 73%.

Clinton was disbarred based on a federal district court's order citing Clinton for contempt in the Jennifer Flowers proceeding. The allegedly contumacious conduct consisted of false statements Clinton provided in deposition, violating the court's discovery order. The court focused on two false statements: that Clinton had never been alone with Monica Lewinsky and that he had never had sexual relations with her. The Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas professional practice rules 8.4(c) and 8.4(d), which make it professional misconduct for a lawyer to:

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice

For one living and litigating under the California Constitution, which declares privacy on par with life and liberty in its inalienability, requiring under the Federal Rules that a litigant inform on his sexual partners seems barbaric. Without a direct showing of relevance to the present lawsuit, a federal plaintiff can force exposure of the most personal information. While a court should assign some culpability for the generalized offense of lying in court, it should also consider the altered ethical context, depending on the personal decision the respondent actually faced. Bar Rules typically distinguish different grades of unethical conduct, and the Arkansas rules offer this discussion of moral turpitude:

Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

There are other relevant measures of ethical magnitude, however, such as between breach of basic moral rule (malum in se) and breach of administrative regulation (malum prohibitum). Both malum in se and malum prohibitum infractions have some ethical relevance, but only malum in se violations are usually taken to indicate turpitude, because malum prohibitum infractions reflect only the single trait of law abidingness. While the rule against lying in sworn proceedings is malum in se in form, the underlying obligation to allow routine discovery of one’s sexual partners is malum prohibitum. There is no moral inevitability today for judicial access to all information potentially relevant to civil litigation; no moral inevitability today to afford civil litigants easy intrusion into an opponent’s sexual relationships; no moral inevitability today about holding the threat of future judicial inquest over every unconventional private act a person performs. California privacy law proves the absence of such moral inevitability. Lying to protect personal information from an ethically dubious intrusion is malum in se, insofar as it involves lying, and malum prohibitum, insofar as it involves a failure to comply with the discovery order requiring disclosure. The Arkansas Supreme Court Bar arm didn't consider the ethical dimension in sufficient depth, because it responded with the bureaucratic reflex and moralistic rigidity typical of the State Bar establishment, using the single amorphous concept of moral turpitude to erase distinctions.

The ethical crudeness of the Clinton disbarment decision, however, was not its main failing. The Arkansas Supreme Court should have been subject to federal preemption. It exceeded its jurisdiction in disciplining a President for his conduct as a Federal office-holder. The states have no jurisdiction to control the exercise of Presidential power or of the President's performance of his duties.

The court might have agreed, as it created the impression of imposing the sanction for conduct it observed during the Flowers proceeding, involving personal rather than Presidential conduct. Clinton’s grand jury testimony during the Special Prosecutor’s investigation of his Presidential conduct impeached his Flowers testimony, said the court, but the same logic allows that the Flowers testimony impeached Clinton’s statements to the Starr grand jury. While the district court judge wrote that she directly observed the contumacious conduct, she was mistaken in her evidentiary characterization. She actually observed only a conflict between two testimonial acts. The judge observed or was entitled to take judicial notice of a conflict between Clinton's testimony in his Flowers deposition and his testimony before the Kenneth Starr grand jury, indicating that in one of the two instances of testimony, Clinton was lying, leaving the question a mixed State and federal law question, pre-empted by federal law. The Arkansas court was not entitled to disbar Clinton.

No comments: