kanBARoo Court. 47B Installment. The Logic of State Bar Proof-of-Service Fraud

Is faulty service standard-issue heavy artillery in the State Bar's arsenal or more like the atomic bomb, usable only in exigent circumstances? We can partly answer this question without direct evidence by comparing the forces constraining civil-practice attorneys and Bar counsel to serve documents faithfully. In civil practice serving the requests-for-admissions discovery tool poses the greatest temptation to cheat because of nonresponsiveness carrying a draconian consequence: a motion that all requests be deemed admitted, after which opposing party can usually obtain summary judgment. But even the most unethical attorneys don't falsely claim to serve requests for admission — except, perhaps, when their opponents are pro se non-attorneys — as a fraudulent win in civil court doesn't impart momentum comparable to a win in a State Bar matter. One reason, the waivers that Bar law imposes, in tandem with time pressure. When a State Bar respondent loses, the case continues at rapid clip, and respondent must either suffer default after refusing to participate or waive the rights respondent was asserting by motion or defending by opposition. Testing the State Bar's claims is too risky for most attorneys. The State Bar respondent's credibility deficit is another reason a fraudulently obtained State Bar victory carries advantages absent when a litigant commits extrinsic fraud in civil court. In a civil case if one attorney claims service and the other nonreceipt, the judge will accept the nonreceipt theory and assume loss in the mail, because the nonreceipt-theory's risk is smaller: unnecessary delay, not forfeiture.

Both realistic and doctrinal causes contribute to creating a different evidentiary balance for proving service in the State Bar Court. Realistically, many or most respondents are pro se and fighting for their professional lives, a predicament increasing their incentive to lie. Doctrinally, the tacit appearance-of-impropriety legal theory defines respondent as corrupt, lending little credence to respondent’s contentions when they contradict the State Bar's sworn declarations. State Bar respondents lack the leverage to contest fraudulent wins because their risks are too great or their courage too small. And they lack the credibility to garner more than half-hearted relief from setbacks due to unprovable service failure.

This analysis suggests that State-Bar-engineered service failures are more like heavy artillery than the atomic bomb. We should expect that fraudulent proof of service is common in State Bar Court, since extrinsic fraud is harder for a State Bar respondent to oppose than for a litigant in civil court. And if respondents often deny receipt of matter the State Bar claims it served, Bar counsel needn't fear injury to their reputation for truthfulness. The courts would anticipate that State Bar respondents will deny service, in already corrupt attorneys' desperate struggle for professional survival.

If so, the courts' anticipation rests on logical error. Their analysis doesn't follow the game-theoretic implications to their conclusion: where State Bar respondents are thought — accurately or not — to have a high propensity to lie, Bar counsel will lie with regularity. Although respondents may have the greater incentive to lie, Bar counsel have the lesser disincentive, since their honesty won't be questioned. The greater incentive of respondents thus creates the lesser disincentive for Bar counsel. Bar counsel's ability to lie with impunity renders State Bar proof-of-service fraud more common than many observers realize. Game theory, after all, is counter-intuitive.

To rectify, the State Bar's Rules of Procedure must contain stronger guarantees than provided by the Code of Civil Procedure. The State Bar Rules of Procedure should require the State Bar to prove service by certified mail. To the same end, service to the Office of the Chief Trial Counsel should be made through the Bar Court rather than by respondent, since the offices' proximity insures reliable, low-cost delivery.

kanBARoo Court. 47A Installment. More Dirty Tricks from the State Bar

To avoid losing, how far will the California State Bar go? Recent happenings suggest that the limits haven't been plumbed. The State Bar's malign reach extends to the California Supreme Court Clerk's Office, ordinarily a model of propriety. My filing of a petition for writ of review was not perfect in every sub-technical respect, but whereas filings with the State Bar are problem-laden every step of the way, filing with the Supreme Court was fast and always is unproblematic, as the civil procedure remained until the State Bar got into the act. The Supreme Court Clerk's Office filed the State Bar's answer three days late, without obtaining permission of the court as required. Initially, I intended to ignore this improper filing, an accommodation that would have been a mistake and a deviation from my anti-waiver strategy. One grows weary of these procedural battles, and I looked forward to calmly writing a reply and, I hoped, a supplemental petitioner's brief, after the Supreme Court accepted review. This Pollyannaish perspective denied the reality that litigation against the State Bar is procedural to the end, because the State Bar refuses to play by its own rules. When I discovered the State Bar not only filed its answer late but also served the answer improperly, I came to my senses and filed a motion to strike respondent's answer. (See 47th Installment.)

How worried should the State Bar be? First, let's look at the procedures governing a petition for writ of review and what I have recently learned relevant to the petition's prospects. Formally, a petition for writ of review initiates a two-stage process. After the first round of briefs, culminating in petitioner's reply brief, the Supreme Court may grant review, after which the court invites respondent to file a more extensive supplementary brief, followed by a more extensive brief by petitioner. Which stage poses the greatest hurdle? The answer is a stage that doesn't explicitly exist, the first stage mentioned above really being the second, and the second described above, the third in practice. The Supreme Court may, and usually does, dismiss the petition before the State Bar files an answer, because the court deems that the petitioner has not established a prima facie case. I think early dismissal is the fate of the overwhelming majority of such petitions; Richard Fine's extremely detailed and extensive petition is an example. (See Justice Kennard's dissent in In re Rose (2000) 22 Cal.4th 430, discussed at the 30C Installment.) The State Bar delays filing its answer until the last moment, hoping and expecting that the Supreme Court, as usual, will reject the petition sua sponte at the end of the actual first stage. The delay avoids the labor of drafting the answer, and more importantly, allows the State Bar to avoid committing itself to new legal or factual positions. The State Bar's answer is only minimally important, normally, because the petitioner either will have established a prima facie case or have failed to establish one. In a case like mine, mostly raising questions of law, even the final phase is not apt to be telling, because the relevant facts are immediately available from the record.

Twenty days after I served the petition, when it became apparent the Supreme Court, not having dismissed my petition, believed I established a prima facie case, the State Bar had good reason for worry. The process really contains three hurdles, the first and most important one now surmounted. The State Bar was on course to lose in the Supreme Court, a fate not exactly but almost unprecedented, as I have found two ancient State Bar cases where the Supreme Court granted a complete dismissal in the interest of justice. The State Bar cannot afford to lose a single case today. Its tacit doctrines of strict ethical liability and mere appearance of impropriety--with guilt assumed in practice upon the State Bar's bringing charges--depends on the State Bar's infallibility, not as to all the charges, not as to the appropriate level of discipline, but definitely as to existence of culpability.

I don't know what the State Bar argued in its answer, but the State Bar desperately wanted to avoid having this petitioner file a reply, a reply due on very short notice, 10 days after the State Bar deposits its answer in the U.S. mail. The State Bar first tried to misdirect the answer to another attorney's address. When the Supreme Court clerks caught the mistake and informed the State Bar, it served its answer to my previous address, against its own Rules of Procedure, rule 61(b), and the California Rules of Court, rule 9.13(f). The Supreme Court's Clerk's Office did not, as customary, record its initial rejection on its docket, an omission I consider mildly collusive, and I suspect the State Bar omitted any actual mailing on its second try, because mailed to the previous address, only ten miles away, the answer would still have arrived long ago. With luck, the State Bar might have enjoyed my ignorance of its submission and filing until the court actually rendered a Bar-favorable decision. At that point, I could challenge the service, but I would have to attack a decision already made. Not only would the momentum favor the State Bar, but it could reasonably hope I would be so fed up I wouldn't bother.

kanBARoo Court. 47th Installment. Motion to Strike State Bar's Answer to My Review Petition

[Filed August 25, 2008; State Bar's Opposition Filed August 29, 2008]

S164152

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

Petitioner’s Motion to Strike Respondent State Bar’s Answer to Petition for Writ of Review

(Notice of Motion, Points and Authorities, Verification, and Proposed Order)

Stephen R. Diamond

In Pro Per

State Bar No. 183617

6424 Mountain View St., #2

Joshua Tree, CA 92252-2385

Phone: (760)974-9279

Fax: (866)392-4866

Motion to Strike Respondent’s Answer; Points and Authorities; Verification; Order

To the Honorable Chief Justice and Associate Justices of the Supreme Court:

Petitioner moves to strike the answer to the petition for writ of review filed by respondent State Bar on August 14, 2008. The grounds are 1) the answer was filed late without permission of the court; and 2) the answer was improperly served to a previous address. Petitioner has not received the answer and remains entirely ignorant of its argument.

This motion is based on this notice, the attached memorandum of points and authorities, and the complete case file.

Date: August 21, 2008 _________________________
Stephen R. Diamond

Points and Authorities Supporting Motion to Strike Respondent’s Answer

Petitioner filed a timely petition for writ of review on July 25, 2008. Service by mail was made on all required parties on July 22, 2008. Respondent State Bar filed its answer three days late, on August 14, 2008, without obtaining permission of the court. The filing was improper and must be struck.

1. Respondent's answer was untimely.

Rules of Court, rule 9.13, states that respondent can file an answer to a petition for review, allowing for service by mail, within 20 days of service of the petition. The clerk’s office starts the answer’s filing period from the filing of the petition, rather than from its service. This practice violates Rules of Court, rule 9.13 (a) [The State Bar may serve and file an answer to the petition within 15 days of service of the petition. (Emphasis added. )].)

Petitioner contends that the clerk's office lacks jurisdiction to revise its own rules. Petitioner further contends that tacit rule change is prejudicial, creating an unfair inequality in knowledge between petitioner and respondent regarding the actual rules followed. Unlike respondent, petitioner cannot be expected to know the informal rule revisions adopted by the clerk's office. On short notice, when plans for responding must be carefully laid, the effect of these seemingly small advantages becomes material. The clerk's office must follow the written rules, not its own creative interpretation.

2. Respondent's service of its answer was improper.

The State Bar Rules of Procedure, rule 61(b), provides that service of pleadings is to be made at the last address filed with the State Bar, provided the party receiving service is a State Bar Member. Inquiry with the clerk's office revealed that the State Bar had first mailed its answer to the wrong attorney. The State Bar tried again and mailed its answer to respondent’s old address, although petitioner had made a timely change to his State Bar records. The Supreme Court handling clerk, “Jennifer,” said she had supplied the State Bar with the second incorrect service address, after the State Bar had served the wrong attorney. Petitioner contends incorrect and improper legal advice from the clerk's office did not relieve the State Bar of its duty to interpret the Rules of Court and its own Rules of Procedure correctly.

Petitioner only recently noticed that Rules of Procedure, rule 61(c), seems to contradict rule 61(b). The appearance of contradiction is avoided by noting that only rule 61(b) pertains to where service shall be made. Rule 61(c) directs Members of the State Bar to change their address with the court during pending matters, but the rule does not provide that place of service depends on that change. Dispositively, the California Rules of Court provide for service, where possible, at the address specified with the State Bar. (Rules of Court, rule 9.13 (f) [The State Bar must serve the member at his or her address under Business and Professions Code section 6002.1, and his or her counsel of record, if any.]) Petitioner contends that, despite his mistake in not recording the address change with the court, the fault for improper service lies with the State Bar.

3. Conclusion

The gravamen of the subject petition for writ of review is malfeasance by the State Bar Clerk's Office, causing denial of petitioner’s right to a fair hearing. A review of petitioner's file would show that prejudicial improprieties in clerical procedures infected petitioner's case from the start, beginning with the State Bar's first attempt to take a default, based on the State Bar's claim that the court clerk's file stamp "received" does not connote "filed," an imaginary distinction appearing in no cases, statutes, or rules. Petitioner contends communication between personnel in the Supreme Court clerk's office and the State Bar office must be strictly proper, at risk of the clerical standard of care falling to the least common denominator. The State Bar knows where it can serve petitioner, who carefully updates the information over the Internet, a method that produces timelier changes than land carriers do. The court should not allow the State Bar to exploit its manipulative discussions with the Supreme Court Clerk's Office, or its special relationship with the Supreme Court itself, to gain an unfair advantage.

Verification

This verification is made on August 21, 2008 in Joshua Tree, San Bernardino County, State of California. I declare on penalty of perjury under the laws of the State of California that the facts stated in this document are true, except those stated as contentions, which are true on information and belief.

___________________________
Stephen R. Diamond,
Petitioner

[Proposed] Order

Based on the application of appellant, and good cause appearing,

It is ordered that the respondent’s answer, filed on August 14, 2008, is struck from the file.

Date:_______________________ ____________________________________
Chief Justice

kanBARoo Court. 46B Installment. "Bureaucratic Reflex" Defined

Of all the California Supreme Court State Bar cases, In re Nadrich (1988) 44 Cal.3d 271 gives the State Bar Court the high court's harshest and most on-point dressing down, defining "bureaucratic reflex" in passing. Beyond the gross defects in legal reasoning charged to the State Bar, the story reveals the State Bar's utter callousness. Nadrich's auto accident had inflicted perpetual severe pain, which to relieve, his physician prescribed Percodan, an opiate. The physician subsequently breached his medical duties by abandoning the patient, after cutting off the addictive pain reliever. Nadrich now had an addiction almost impossible to treat, the price, intolerable pain. Nadrich fell into despair and clinical depression, which forced him to close his law practice. To finance his Percodan habit and freedom from exceptional pain, at vastly inflated street prices, Nadrich accepted two offers to serve as intermediary in transactions to buy LSD.

The case could be a poster for bureaucratic reflex, although the court emphasized instead the Review Department’s refusal to consider mitigating circumstances. Despite the distorted focus, the Supreme Court describes the State Bar Court perceptively. The State Bar Court recommended disbarment for the:

sole stated reason [that]: "[Petitioner] was a professional dealer in illegal drugs for a substantial period of time and did not cease to be so until arrested. A lawyer who engages in such conduct should be disbarred." (In re Nadrich, supra, 44 Cal.3d at pp. 277-278.)

The Supreme Court denounced the State Bar Court’s reasoning in terms implying, from the first sentence, the Review Department was incompetent:

This statement betrays an oversimplified and unsupported view of the law. First, it suggests, incorrectly, that we discipline attorneys simply to punish them. [Citation.] (Cf. 37th Installment ["moralism"].) Second, it implies, also incorrectly, that we will not consider substantial mitigating circumstances in cases involving serious offenses. [Citation.] Third, it intimates, again incorrectly, that we apply rigid disciplinary standards, and that we analyze attorney discipline cases in the abstract instead of resolving each case on its own particular facts. (In re Nadrich, supra, 44 Cal.3d at p. 278 [emphasis added].)

The third—the one the case really is about—exactly defines "bureaucratic reflex."

KanBARoo Court. 46A. Moral Turpitude Properly Construed

The California Supreme Court's debate on moral turpitude's meaning turned on constitutional considerations, such as achieving sufficient precision to avoid vagueness and keeping a constitutionally required nexus with legal practice. (See 46th Installment.) To avoid the inevitable expansion of vague definitions when due process demands greater precision, the California Supreme Court should adopt a narrow and exclusive deceit standard for moral turpitude. This proposal embraces In re Fahey (1973) 8 Cal.3d 842 (see 45th Installment) but goes substantially further toward a tailored, profession-specific definition, precise enough to hold lawyers accountable while affording them due process.

Previous Installments concluded that the moral-turpitude-standard's evolution confirmed a generalization of Brennan's first hypothetical: moral turpitude's circumference expanded to include all borderline cases. (See Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 93-94 [Brennan, J., dissent, "Clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power…"]; see, also, 45th Installment.) Moral turpitude expanded after losing its still insufficiently precise bearings, despite their substance having been recited by Fahey's unanimous court.

Applying the moral turpitude standard requires satisfying two conditions not always distinguished: 1) Moral turpitude must have a nexus with the practice of law; and 2) Moral turpitude signifies moral corruption. The outcome of applying these conditions doesn't conform either to Supreme Court dicta or conventional moralism. In the extreme, #1, specially defined, means murder is not necessarily a crime of moral turpitude. To equal extreme, #2 means the worst incompetence doesn't justify discipline. Regarding #1, the mass of one-time murderers show little recidivism, hence the crime's lessened relevance to moral character. Deceitfulness, on the other hand, differentiates psychopathy. Regarding #2, prohibited discipline for grossly deficient performance, objective methods more reliably assess competence. Thus, bar exams and educational requirements. An example of not distinguishing these two conditions is Acting Chief Justice Tobriner's concurring opinion in In re Rohan, where the acting chief justice bases discipline on deficient skills and habits instead of moral qualities. (See In re Rohan (1978) 21 Cal.3d 195, 206 [Tobriner, C.J., concurring, "Petitioner's carelessness in these {clerical} matters suggests that, for the protection of clients, his practice should be subject to probationary supervision by the State Bar."]

Two broad classes of acts constitute moral turpitude: deceit and force, asymmetric, in that "deceit" permits precise definition, which "force" defies. Deceit is well defined by absolute prohibitions specific enough to warrant their unification in a single tort. (See Civ. Code, § 1709 ["One who willfully deceives another with intent to induce him to alter his position to his injury or risk..."]; see, also, Civ. Code, § 1710.) Force's proper uses and their moral significance, on the other hand, are subject to reasonable disagreement. Distinct by avoiding the vagueness problem through greater precision, deceit is better suited as moral turpitude's practical and legal criterion for a second reason: in legal practice, deceit is moral turpitude's only form. Constitutionally mandated specificity requires using the better-tailored category. (See In re Rohan, supra, 21 Cal.3d at p. 205 [Tobriner, C.J., concurring].)

kanBARoo Court. 46th Installment. Origins of the Appearance-of-Impropriety Dogma

Understanding the California State Bar's dysfunction may lie in legal doctrine's historical course. State Bar jurisprudence reached its apogee with In re Fahey (1973) 8 Cal.3d 842, immediately descending thereafter, and accelerating with In re Rohan (1978) 21 Cal.3d 195, irresistibly influenced by conformity with the national Bar establishment. (Id., at p. 204 [citing "the recommendation of the American Bar Association, as promulgated by the Standing Committee on Professional Discipline"].) Rohan marked the ascendance of the mere-appearance-of-propriety doctrine, central to present State Bar law: bureaucratic reflex, moralism, and legal indifference.

The tabulation of "Observations and Inferences" at the 40th Installment" displays the centrality of the Bar's commitment to discipline for the mere appearance of impropriety. Discipline expressly and tacitly based on this doctrine explains most of the State Bar's other faults. No legal sophistication, only bureaucratic intransigence, is needed when mere appearance suffices to constitute a disciplinable offense. To be accused is to be guilty because leading to accusation, the lawyer's conduct has appeared improper.

In re Fahey, a case dismissed because the court found moral turpitude absent, involved a respondent who didn't file federal income taxes for three years. As Fahey stated and earlier cases suggested, the Supreme Court interpreted Business and Professions Code sections 6101 and 6102 to mean a "[r]espondent is subject to discipline only if he committed a crime involving moral turpitude ... or an act involving moral turpitude, dishonesty, or corruption." (Fahey, at p. 849.) The court defined moral turpitude as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (Ibid.) While in itself vague, the moral-turpitude standard gained precision in a previous case, which held, "To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law." (In re Higbie (1972) 6 Cal.3d 562, 570.)

Fahey, still good law except on the point Rohan overruled, has holdings countering today's State Bar practice. As against cases inferring turpitude from repetition, for example, Fahey held, "There must be more than mere repetition of the same acts to differentiate the offending attorney who is guilty of moral turpitude from the one who is not." (Fahey, supra, at p. 851.) Most importantly, Fahey criticized the:

Several courts [that] have invoked in support of this ground for discipline the precepts of the former Canons of Ethics of the American Bar Association "to uphold the honor and to maintain the dignity of the profession" (Canon 29) and to "observe ... the statute law" and maintain "fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen." (Canon 32)" (Id., at pp. 852-853.)

Offenses that do not involve moral turpitude or affect professional performance should not be a basis for professional discipline simply because they may in some way impair the public image of the profession. Otherwise the imposition of discipline may tend to be influenced by the degree to which the offense has become known to the public. [Citation.] Our standard of moral turpitude depends not on popular impressions but on the violator's own motivation as it relates to his moral fitness to practice law. [Citation.] (Fahey, supra, at p. 853.)

In contrast, Rohan's lead opinion said — over-ruling Fahey's narrow moral-turpitude standard:

An attorney as an officer of the court and counselor at law occupies a unique position in society. His refusal to obey the law, and the bar's failure to discipline him for such refusal, will not only demean the integrity of the profession but will encourage disrespect for and further violations of the law." (Rohan, supra, at p. 203.)

In dissent Acting Chief Justice Tobriner, joined by Justice Mosk, pointed out:

An offense may breach the defendant's duty to society, yet bear no significant relation to fitness to practice. A leading example is Hallinan v. Committee of Bar Examiners ... in which we admitted an applicant to practice law despite prior convictions for assault, battery, disturbing the peace, and trespassing. Conversely, a relatively minor offense may reflect on the practice of law..." (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk continue:

The requirement of a specific nexus between the attorney's conduct and the practice of law should not be evaded by assertions that such conduct demeans the integrity of the legal profession or constitutes an example which may encourage others to violate the law. Such assertions merely concoct a method by which a transgression unrelated to legal practice can be magnified by unproven and hypothetical conjectures as to its effect on the opinions of others. (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk argue that a broader standard for discipline violates the constitutional principle that the California Supreme Court repeatedly enunciated:

that a person can be barred from the practice of his profession only for reasons related to his fitness or competence to practice that profession [Citation]: to allow discipline for unrelated conduct on the ground that it demeans the integrity of the profession would detract from that fundamental principle. (Ibid.)

The influence of the mere-appearance-of-impropriety doctrine continued to mount. In re Kelley (1990) 52 Cal.3d 487 imposed discipline for repeated intoxicated driving. The Kelley court stressed the way impropriety looks to others, stating:

We think it clear that attorneys should realize that repeated failure to conform their conduct to the requirements of the criminal law and court orders specially imposed on them may call into question their integrity as officers of the court and their fitness to represent clients." (Id., at p. 497.)

Justice Panelli dissented vigorously, calling for dismissal, in words that any respondent opposing State Bar oppression should recall:

In imposing discipline for conduct which may affect petitioner's future performance of her duties, although it has not yet affected her performance, the majority embarks on a dangerous journey… We simply have no right to declare ourselves higher guardians of the 'public safety' and increase the criminal law's punishment for the sole reason that this particular driver happens to be a member of the bar… To discipline this attorney for conduct that may in the future impair her practice of law, without disciplining all attorneys for the same reason, presents insurmountable problems of consistency and fairness. (Kelley, supra, at pp. 500-501 [Dissent, Panelli, J.])

(See also, 27th Installment, "Should the Mere Appearance of Impropriety Constitute an Ethical Infraction.")

kanBARoo Court. 45th Installment. The Common Vagueness Problem for Moral Turpitude and Obscenity

Determining the limits of moral turpitude encounters line-drawing problems similar to determining the constitutional definition of obscenity. Vagueness threatens both definitional enterprises. A statute is vague when it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." (United States v. Hariss (1954) 347 U.S. 612, 617.) An ineliminable vagueness may infect pornography regulation, as over decades of deliberation, no jurist has proposed an adequate definition. As for moral turpitude, the California courts have always admitted they cannot define the term. Is "moral turpitude" vague? While the problems of defining obscenity have chagrined our highest court's justices, the courts appear unconcerned about moral turpitude's conceptual reliability.

Justice Brennan set out the modern framework for constitutional regulation of pornography in Roth v. United States (1957) 354 U.S. 476. The different lines of interpretation were also set out in that case or subsequent ones, with alignments sometimes unexpected from the justices’ broader ideological commitments. Chief Justice Warren took a moderately conservative position on this issue, arguing in Jacobellis v. State of Ohio (1964) 378 U.S. 184, 192, for using local rather than national standards. Justice Brennan's lead opinion, in both Roth and Jacobellis, is itself moderate at most. Justices Black and Douglas opposed all censorship with an argument impugned only by the country's historical acceptance of anti-obscenity laws, adopted by all states. Brennan had admitted that the purpose of anti-obscenity laws was to avoid instigating impure thoughts. With this concession, how could the defenders of censorship claim obscenity was unprotected because of its lack of social value? Indifference to thought crimes is the foundation of free speech, and the state's abstention from evaluating speech's social value, the right's core. Justice Stewart had stated what many think emblematic of the pornography debate, when, in his concurring opinion in Jacobellis, he wrote, "I know it when I see it." This position comes rather close to the way the California courts identify moral turpitude. But like quotes of the Oliver Wendell Holmes Jr.'s remark about free speech not including the right to yell "fire" in a crowded theater, Stewart's remark is usually quoted out of context. Holmes had actually proscribed yelling fire in a crowded theater only when no fire existed. Similarly, Stewart had said, "But I know it [hard core pornography] when I see it, and the motion picture involved in this case is not that." Stewart's remarks defended his opinion that the movie was not obscene, and the out-of-context quote is misleading.

If Stewart's misunderstood comment is the most famous part of the pornography debate, the evolution of Justice Brennan's position is the most interesting. Justice Brennan ultimately abandoned the Roth framework. In dissent in Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, he assumed a stance close to Black, Douglas, and Stewart and analyzed the failure of the attempts at definition. Black and Douglas — and more subtly, Stewart — had argued that obscenity laws were capricious because obscenity still begged for definition. Brennan, unlike Justices Black and Douglas, still believed in principle that the state's police power included the right to prohibit obscenity, but Brennan now believed objective definition was impossible. Without objective definition, prohibition was unconstitutional. In his Paris Adult Theatre dissent, Justice Brennan considered how possible changes in constitutional anti-obscenity standards would affect the laws' defects and viability. The first of Brennan's thought experiments answers why vagueness controversy does not besiege the moral turpitude standard. Brennan's analysis shows that the definition of obscenity could achieve adequate precision only by resolving every doubt in favor of the state's right to censor.

This correlation between precision and scope determined the evolution of the moral turpitude standard. Consider as example, willful failure to pay income taxes. Does it constitute moral turpitude, warranting attorney discipline? The California Supreme Court confronted this issue for the first time in In re Fahey (1973) 8 Cal.3d 842. Since Fahey had not lied or intended to defraud — other matters and personal disorganization harried him — the Supreme Court unanimously decided to dismiss the case. The court also based dismissal on the further holding that attorneys should face discipline only for acts of moral turpitude, interpreted to reflect characterological unsuitability for law practice. Five years later, the California Supreme Court unanimously decided to discipline an attorney for a similar failure to pay income taxes. (See In re Rohan (1978) 21 Cal.3d 195.) The lead opinion justified discipline by renouncing moral turpitude as the sole basis for discipline. Rohan was not culpable for moral turpitude, but his crime warranted discipline for other reasons. A concurring opinion by Tobriner and Mosk opposed abandoning the exclusive moral-turpitude standard for discipline, yet still favored imposing discipline on Rohan because these concurring jurists understood willful failure to pay income taxes to involve moral turpitude. Although differing on criteria, the justices closely agreed on the level of discipline, which involved a 60-day actual suspension.

Brennan had predicted a clear definition of "obscenity" would cost an increase in its reach. This extension occurred in First Amendment obscenity cases, when the Burger court moved the standard from the complete absence of redeeming social value to lacking serious value and from a national standard of community opinion to local standards. The concept of moral turpitude has undergone the same change, both by broadening moral turpitude's definition and supplementing the standard to broaden discipline's sweep. The courts have avoided vagueness in the moral-turpitude standard by broadening the concept or its surrogate to include borderline cases.