Tuesday, May 27, 2008

kanBARoo Court. 38th Installment. Extortion, State-Bar Style

A State Bar respondent usually receives first contact through State Bar Investigations. This division's investigations have received scant treatment here, because there is no case law governing their conduct. Well-established law makes credibility the sole determinant of the evidence's weight in the State Bar Court, and the courts do not rule on investigatory methods where they don't bear on its fruits' admissibility. (In re Gross (1983) 33 Cal.3d 561, 566-567 ["[O]nly such irregularities in the State Bar proceedings as reasonably can be seen to have resulted in unfairness to the attorney would cause us to disregard his misconduct disclosed thereby."])

The law's neglect of the State Bar's investigations affirms the wisdom of the U.S. Supreme Court's exclusionary rule, which makes evidence inadmissible in criminal court when collected in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments. Misconduct's irrelevance to State-Bar-Court admissibility has created an unregulated Investigations Division. Only exclusion deters collecting evidence in illegal ways, as the vast bulk of the case law governing search and seizure under the Fourth Amendment arises from the exclusionary rule.

The exclusionary rule probably applies to evidence collected by the Investigations Division in violation of the Fourth and Fourteenth Amendments. (See Dyson v. California State Personnel Board (1989) 213 Cal.App.3d 711.) But the exclusionary rule does not constrain State Bar investigations, because the State Bar doesn't usually do its own searches. (See Emslie v. State Bar (1974) 11Cal.3d 210, 229-230 [Evidence independently collected by the Nevada police admissible in the State Bar Court].)

The State Bar Investigator's favorite form of misconduct is extortion. Generously rewarded, apparently, for an accused Member's resignation, the non-attorney Investigators advise the Member on how resigning serves the Member's legal interest. Investigators harass Members by phone, reminding them to think about this option. A piece of blackmail gives rise to this urgent advice, as the Investigator has already concocted law to warn the Member of his probable criminal fraud conviction. The Investigator good-naturedly offers the Member hope, promising that his resignation stops the investigation. The fear that the Investigator so kindly offers to allay is founded on the Investigator's threat to convey the evidence to the Attorney General, if Member contests the charges.

Penal Code section 518 defines extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." The Investigator's threatening resignation-induction satisfies the "official act of a public officer" prong, because the Investigator demands the signed resignation of an attorney, an officer of the court. Penal Code section 519, subdivision 2, defines the fear-induction the preceding section prohibits to include "[accusing] the individual threatened ... of any crime." The Investigator's threats elicit fear by accusing the Member of criminal fraud.

The California Supreme Court holding that only the strength of the evidence before the State Bar Court matters perpetuates Investigators' criminal practices, such as extortion. These practices do not serve the interests of justice because they create a lawlessly capricious mindset among Investigators. The experience with the exclusionary rule shows that only excluding evidence illegally collected avoids its illegal collection. The State Bar Court should adopt specialized exclusionary rules to supplement the federal rule, so Investigators don't rely on extortion to coerce resignations.

Thursday, May 15, 2008

kanBARoo Court. 37th Installment. Moralism: A Synthesis

Attentive readers will have wondered whether I would ever get around to defining "moralism." Perhaps I was unaware that I hadn't provided a definition or even failed to notice the meaning was not evident, although involving replacement of positive law with moral claims. A more refined but still preliminary definition is moralism asserts quotidian moral norms should decide legal outcomes.

Psychoanalytically, moralism expresses the archaic super-ego, the Freudian punitive and primitive unconscious conscience, organized around desert through the talion (eye-for-an-eye) principle. The 35th Installment related moralism to capital punishment, and I claimed moralism includes the tenet holding some deserve to suffer; insists capital punishment be punishing; and insists suffering penalize lesser misdeeds. These tenets comprise desert, prominent in conventional morality. In the same Installment, I called capital punishment regressive moralism's extreme; it takes desert furthest. The 36th Installment holds moralism responsible for laws barring insurance and indemnification for intentional torts, because the measures prohibited interfere with desert. In the 33rd Installment, I claim moralism denies the right to demand trial. The talion principle so insists, as the defendant didn't give his victim a trial.

Only partly overcome by lawyers, moralism is the natural way we think about punishment. The moral compulsion is sufficiently instinctive that bureaucratic reflex expresses and harnesses it. The moral compulsion's mental presence is sufficiently vivid to support widespread reification in a naïve moral realism, which holds that moral facts exist. The 6th Installment maintained that strident moralism obfuscates issues, helping justify bureaucratic reflex. Conventional moral feelings color and obstruct thought by their tenacious grip and, as habitual thought patterns, they coincide with bureaucratic reflex. The 32nd Installment says that the State Bar distorts civic discourse wherever the Bar imposes its bureaucratized moralism. By incapacitating the analytic faculty, moralism prevents rational discussion.

Deciding legal outcomes by primordial moral norms produces inferior legal outcomes because the process strips proceedings' limitation by the law of evidence, the law of procedure, precedent, informed statutory construction, and public policy. Everyone understands the first four, but public policy is easily confused with morality. While desert calls for punishment consistent with the severity of the infraction, current public policy is mostly dedicated to deterrence, and deterrence demands not only a positive relationship between punishment and an infraction's severity but also an inverse relation to the probability of apprehension. Desert demands that capital punishment punish, while a strong public policy against torture, defined as any unnecessary infliction of pain, calls for only painless executions.

In my case, one must labor to apply the distinction between moralistic and policy-governed prosecutory practices, when contemplating the prosecutrix stealing documents from the case file. Even moralists gag on her conduct. This is why the prosecutrix’s malfeasance will carry weight, even in the hypermoralistic atmosphere of appellate State Bar Court case review.

Sunday, May 4, 2008

kanBARoo Court. 36th Installment. Securing Client Funds

If the California Supreme Court tolerates the State Bar Court, the practical importance of client-fund security is one of its reasons. While strict ethical liability is legally indefensible, it seems to enhance fund security by simplifying proof, supposedly creating a greater incentive to avoid impropriety. We can ask two questions. Does the measure accomplish this purpose? Does it accomplish it better than alternatives?

Strict ethical liability neither prevents misappropriation by staff nor yields rapid reimbursement. Katie Lee is the only defrauded person to get restitution, and she got it directly from J.B. Kim, the criminal mastermind, not by any action of the State Bar. The State Bar lacks the instrumentalities to hasten recovery of embezzled funds; the coercive powers of the criminal justice system are more powerful, the comprehensive powers of the civil law system more adaptable. A smoothly functioning legal system, however, should afford clients complete security against theft. Even the criminal justice system and civil law do not provide immediate recovery, which would require insuring funds held for clients. Laws barring insurance and indemnification for intentional torts, an archaic limitation rooted in moralism, block this alternative.

Even so, the mere threat of civil action induced Kim to pay part of his damages to defrauded person Katie Lee, and its effect dims when compared to what she might have recovered with an able attorney. While Lee's attorney, Scott A. Meyers, Esq., threatened me with a lawsuit on behalf of his other client, the chiropractor, he never sued me or even threatened a lawsuit on Lee's behalf. Meyers's sheer ignorance of the law likely caused his reluctance to litigate, as Meyers is the kind of attorney who neither knows nor knows how to find out that a business is liable for the intentional torts of its employees, including punitive damages.

Readers, if not the State Bar Court, are bound to have noticed that "strict ethical liability" is self-contradictory. Ethics concern the propriety of conduct, ethical strictures necessarily apply to the conduct of the person charged, and the State Bar Court's jurisdiction is inherently ethical. Concerned with assessing danger to the public, the Bar necessarily must focus only on the conduct of the Member, whereas civil law concerns a broader range of priorities and is free to fix penalties pragmatically. The courts distinguish between ethical and pragmatic rules, as they hold punitive damages assessable despite the absence of owner culpability. The laws concerning corollary matters are construed accordingly, for example, the owner can insure against punitive damages due to the misdeeds of staff. As the 9th Circuit held, interpreting California law:

"Indemnity for [damages because of the wrong-doing of insured's agent] is not contrary to public policy because the insured in such a case is guilty of no wrong-doing, but simply has the misfortune to be legally responsible for the wrong-doing of another." (Dart Industries, Inc. v. Liberty Mutual Ins. Co. (9th Cir. 1973) 484 F.2d 1295, 1298.)

Even without insurance-law reform, civil action provides a more practical vehicle for deterring embezzlement. Kim targeted his Korean victims because he knew they couldn't get able counsel. Otherwise, why would they accept Kim as effectively their attorney, without even so much as a retainer agreement bearing a lawyer's signature? Provided a client is well represented, the threat of punitive damages — which cannot be discharged in bankruptcy — is a powerful deterrent, and one that would be applied within a year of filing under California "fast track" rules. Yet the State Bar is oblivious of the problems of service delivery to recent immigrants. Worse, it enforces anti-partnership provisions, construing them overbroadly, to bar immigrant litigants from getting better lawyers than Scott A. Meyers, Esq.