Saturday, November 29, 2008

kanBARoo Court. 53rd Installment. State Bar v. Equal Protection of the Law

When the State Bar disciplines an attorney for violating court rules and orders restricting filings and in-court statements, the State Bar regulates speech, and restraints on speech must not exceed First and Fourteenth Amendment limits. Alleging violation of attorney free-speech rights is the reflexive reaction to State Bar interference in speech regulation, an approach that hasn't won and won't, but to the State Bar's delight, the same facts elicit the same self-defeating reflex from respondents.

The First Amendment-based Canatella line of cases confuses some California State Bar Court respondents, as the minor victory in
Canatella v. State of California (9th Cir. 2002) 304 F.3d 843 ("Canatella 1") obscures the egregiousness of Canatella v. Stovitz (N.D. Cal. 2005) 365 F.Supp.2d 1064 ("Canatella 2"). Canatella 1 seduces attorneys to repeat instead of learn from the Canatella 2 mistakes. Canatella 1 found that the Younger abstention doctrine, which protects ongoing state proceedings from federal court interference, did not compel case dismissal, since Canatella filed before the State Bar served him a case-initiating Notice of Disciplinary Charges. Canatella 1 also held the case, seeking prospective relief, wasn't subject to the Rooker-Feldman doctrine, which applies to cases seeking review of state-court decisions. Canatella's case ripened before the State Bar acted, when a new violation put the previously disciplined but unrepentant Canatella on a collision course with the State Bar. Canatella skillfully maneuvered around the restrictions of Younger abstention, the Rooker-Feldman doctrine, ripeness, and mootness, to find a way to federal court. But his narrow procedural victory allowed a hearing due only to special circumstances, and the holding is usable by few respondents. Having decided these procedural preliminaries, the Ninth Circuit ordered the Northern California District Court to try the case. The district court rejected Canatella's petition on the merits.

Canatella 1 established a narrow procedural point significantly increasing the State Bar respondents' degrees of freedom, but Canatella 1, contrary to the impression of some, is far from the most important prorespondent disciplinary result obtained in federal court. That honor belongs to Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. of CA v. Yagman (9th Cir. 1995) 55 F.3d 1430. Yagman had publicly stated that a district court judicial officer, Judge Keller, was dishonest, had a "penchant for sanctioning Jews," and was "drunk on the bench." The Ninth Circuit dismissed the disciplinary action against respondent Yagman, holding "lawyers' statements unrelated to a matter pending before the court may be sanctioned only if they pose a clear and present danger to the administration of justice." (Yagman, supra, at p. 1443.) Yagman not only set a strong affirmative precedent but helped limit a U.S. Supreme Court case that significantly impaired attorneys' free-speech rights. Gentile v. State Bar of Nevada (1991) 501 U.S. 1030 held that in ongoing or pending litigation, the standard of "substantial likelihood of material prejudice" can impose a standard weaker than clear and present danger for restraining attorney speech. Yagman clarifies that "when lawyers speak out on matters unconnected to a pending case, there is no direct and immediate impact on the fair trial rights of litigants." (Yagman, supra.)

Two mistakes, two First Amendment reflexes, confuse respondents who duplicate Canatella 2's mistakes. The first is the concept that an attorney has personal free-speech rights in court representing litigants. This mistaken reasoning has confused attorneys so they argued the First Amendment protects filing frivolous motions. The leading cases' rhetoric fosters the view that attorneys have some personal free-speech rights in the courtroom, but it leads naught. The standing aphorism is that "attorneys and other trial participants do not lose their constitutional rights at the courthouse door.” (Levine v. U.S. District Ct. for the C. Dist. of Cal. (9th Cir. 1985) 764 F.2d 590, 595.) The Canatella 2 court puts the Levine holding in perspective: "The United States Supreme Court has held that 'in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed.'" (Canatella 2, supra, at p. 1071, citing Gentile.) Gentile remained a problem for Canatella and remains problematic for other State Bar respondents who assert free speech rights during pending procedures. Exuberance about attorney free-speech rights typically ignores distinctions between the attorneys' personal rights and their clients' rights. When courts announce that rights don't stop at the courthouse door, they impliedly speak of the represented parties' rights, not their attorney's personal rights. But the distinction is unstated, the Gentile court appearing to have in mind the attorney's personal rights when the court described their slenderness in an ongoing case. Systematic confusion between the two rights bearers diminishes litigants' First Amendment right to petition for redress. The concurring opinion in another Ninth Circuit case captures the real state of the law on attorney free speech rights:

I believe [Sacher v. United States (1952) 343 U.S. 1] and Gentile are potentially misleading: although they discuss the in court First Amendment rights of lawyers, in fact those rights do not have any independent substance. In the courtroom, during a judicial proceeding, an attorney's "First Amendment" rights depend exclusively on his client's trial rights. The attorney may speak only to the extent that his client's rights allow him to speak.” [Citation.] (Zal v. Steppe (9th Cir. 1992) 968 F.2d 924, 931 (conc. opn. of Trott, J.).)

Gentile's practical import is that in 1991 it had already foreclosed opposing disbarment for frivolous filings because they are believed expressive. Even though the specific speech involved in Gentile was highly public speech, the holding enveloped filings too, since it dealt generally with attorney speech relating to a pending case.

More important than the distracting confusions about an attorney's personal free-speech rights in court is the second type of mistake in opposing the State Bar's speech restraints: the persistent failure to distinguish State Bar discipline from contempt actions in California courts of record. Repeating Canatella's mistakes means, foremost, failing to distinguish State Bar discipline for violations of orders and rules from their imposition by the courts. Just as no one questions the legality of sanctions imposed for frivolous motions, more severe sanctions imposed for contempt are ordinarily valid, but the penalties should be invalidated when authorized under State Bar law rather than the court's contempt powers, the State Bar's threat qualitatively more onerous than a contempt. When attorneys test an order's validity by refusing to obey, they assume the risk they will pay a fine or even spend days in jail, whereas no attorney would test a contempt order risking State Bar discipline; the highly subjective exception for reasonable good-faith justification only dents the risk. State Bar intervention in court affairs by disciplining disobedient attorneys, consequently, impugns California's public policy allowing parties to challenge orders by conduct.

American Civil Liberties Union v. The Florida Bar (11th Cir. 1993) 999 F.2d 1486 shows how the intervention of State Bar disciplinary machinery chills advocacy much more than the threat of a contempt citation. Florida attorney Schack was running for judge, but the language of the Bar rules, which the State Bar had previously applied to limit judicial candidates' speech, cast doubt on whether exposing an opponent's corrupt practices violated rules about maintaining the dignity of office even before its attainment. Yet the State Bar refused Schack's request for an advisory opinion. Complains the Eleventh Circuit, "Thus, with two weeks remaining until the election, Schack was faced with the choice of risking possible disciplinary action by the Bar [and a related agency], or self-censoring his proposed campaign speech, despite his belief that this speech was protected under the First Amendment." (Id., at p. 1489.) Civil penalties as might apply to non-lawyers are not so paralyzing.

The argument that State Bar intervention in speech regulation singles out attorneys for harsher treatment is an equal-protection argument, rather than a free-speech argument. Lawyers and their clients are deprived of the equal protection of the law when litigants are permitted to invalidate orders by contesting a contempt citation, or violate rules and risk only monetary sanction, while the State Bar's much harsher penalties effectively compel automatic attorney compliance with all court orders. This argument's chances are better than the failed free speech arguments; Gentile's four-justice dissent shows that judges can scorn unfair and unnecessary laws exclusively targeting attorneys:

At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law. [Citations.] We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon first Amendment freedoms. And none of the justifications put forward by respondent suffice to sanction abandonment of our normal First Amendment principles in the case of speech by an attorney regarding pending cases. (Gentile, supra, at p. 1054 (lead & dis. opn. of Kennedy, J.).)
State Bar-imposed speech restraints, even when unobjectionable in themselves, should be invalidated, since superimposed on the laws governing nonattorney litigants, they amount to a comprehensively restrictive regime impinging the fundamental right to the law's equal protection.

Wednesday, November 19, 2008

kanBARoo Court. 52nd Installment. The Opinionless-Decision Conspiracy

When the California Supreme Court ratified opinionless denials of review, it implemented and enlarged a tactic already tested by a conservative federal circuit court of appeals to deny disfavored and oppressed groups equal protection under a uniform set of procedures and laws. Opinionless reviews are the end of an unacknowledged procedural spectrum treating some cases as less worthy of due process.

The experiment started in the late 1950s when the Fourth Circuit began an unannounced categorization of cases, denying publication to some, while treating unpublished cases as nonprecedential. The Fourth Circuit used nonprecedential cases to resist U.S. Supreme Court initiatives under Brown v. Board of Education and to deflect numerous prisoner-rights cases under the Civil Rights Act. (Pether, Outing the Judicial Epistemology of Hart V. Massanari (2005) 62 Wash. & Lee L. Rev. 1553.) Nonprecedential opinions allowed the Fourth Circuit to treat these cases differently not only in the obviously procedural respect but in respect to the substantive rights found. The cases' nonprecedential character barred other plaintiffs from citing them to enforce their rights, hence eliminating the main motive for correctly finding law contradicting a judge's political or personal inclinations. Studies proved that courts applied different standards in nonprecedential opinions. A 1999 study of the Americans with Disabilities Act showed the plaintiff win rate in employment discrimination cases at the district court level was four times higher in published than unpublished opinions. (Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants (1999) 34 Harvard C.R.-C.L.L. Rev. 99.) If courts correctly decide unpopular cases only if the judges intend publication, a still greater degree of bias will obtain in cases where the court issues no opinion, not even an unpublished, nonprecedential one. An uncitable case may free judges from legal constraint, but the written opinion remains obtainable and a mild embarrassment to the inconsistent judge.

The California courts and the Ninth Circuit were in the forefront of the judiciary's rearguard opposition to Rules of Appellate Procedure rule 32.1, which compels the federal circuits to allow citation—but not precedential force—to unpublished cases. California state courts still enforce a rule subjecting attorneys to sanction for tacitly confronting a court with its inconsistent unpublished decrees. The procedures associated with nonprecedential cases would disturb lawyers if more of them knew. When matters stood much better for court dockets decades ago, already a California Supreme Court screening process culminated in an intense "Wednesday conference" meeting in the Chief Justice's chambers to consider petitions for extraordinary writs and other petitions, including State Bar disciplinary matters. These matters were divided into an A-list and B-list, the latter where denial of the petition seemed indicated. At the beginning of the hour, the conference would summarily reject the bulk of B-list items, 2/3 of the 100 or so considered each week. (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L. Rev. 514.)

The judiciary's attitude toward reviews of complaints by those convicted of crimes—and one must suspect, quasi-crimes—was expressed forthrightly by Justice Black, who supported a lower court's denial of a transcript to a prisoner:
I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error… This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. (Wade v. Wilson (1970) 396 U.S. 282 [Black, J., dissenting].)
Procedures perfected against rights-demanding prisoners are today deployed against State Bar respondents.

For a more general treatment of nonprecedential opinions, see the eponymous entry in my new blog, Juridical Coherence.

Saturday, November 1, 2008

kanBARoo Court. 51st Installment. Online Charges: The State Bar's Latest Power Grab

In the State Bar establishment's summer power play, the Board of Governors authorized Internet posting of the State Bar's mere allegations against a Member. For once, even the county state bar organizations protest, by opposing the Board of Governors' 18-4 decision. Dissenters focus on the threat to the reputations of innocent attorneys, who the State Bar says constitute 9% of its respondents, but the State Bar argues from the wrong statistic, grounded in tacitly assuming false charges' reputational harmlessness unless the accused is completely exonerated. Critics mostly accept the focus on the 9% statistic, despite its invalidity as a measure of wrongful harm to reputation.

The State Bar places the policy's critics in the unfavorable position of opposing transparent public administration and the public's right to access public information conveniently. Assuming a stance that seems to oppose the public welfare, the critics can succeed only by asserting that the web disclosures violate some basic right: according to legal ethicist Diane Karpman, the presumption of innocence. (Karpman, Online charges catch the good and the bad (August 2008) California Bar Journal.) She's right, but the argument is impossible to win. To prove that the posting violates the presumption of innocence, a respondent must show that the public disclosure is intended as punishment. (See Bell v. Wolfish (1979) 441 U.S. 520, 585 [dis. opn. Stevens, J.].) Inherently, the State Bar's punitive intent isn't hard to prove, shaming being a traditional means of punishment, but under Bell v. Wolfish, a reviewing court must find that the measure has no rational justification except as punishment, to conclude punishment without proof violated the presumption of innocence. (Id.)

The State Bar's hypocrisy in playing the public-protection card is shown by the contours of its new posting policy, the policy's anti-public interest direct effects, its internal contradictions. One of the most important public interests regarding legal practice is attorney-client confidentiality. As Karpman argues, the State Bar's new posting policy conflicts with the public interest by undermining confidentiality in matters where the accused attorney's clients haven't agreed to disclosure. (Karpman, supra.) The State Bar's expungement allowance for administrative suspensions, amended this summer for greater leniency, contradicts the State Bar's claim that the public's right to know is paramount. Most tellingly under the new posting policy, when the Member is completely exonerated, the rule requires removal of the NDC and the opinion dismissing it within 60 days. With the last rule, the State Bar disregards both attorney reputational interests and public informational interests, to favor the State Bar's self-protective instinct.

Supporting barriers to public information access yields the high ground to the State Bar. The new posting policy threatens innocent reputations only because the State Bar self-servingly proposes postable and unpostable categories that increase the weight of adverse information and strengthen the State Bar’s bargaining posture in disciplinary negotiations. The policy undemocratically hides private complaints filed with the State Bar, information that would show what investigations the State Bar omits, a matter publicly interesting. And the State Bar adds only minimal caveats when it posts the Notice of Disciplinary Charges, without warning, for example, that no court reviewed the allegations.

All public information should be available on the State Bar's web site, and all information related to disciplinary matters should be public. If the State Bar claims such posting is impractical, then it must admit that a selection process biases the posted information. Unless the State Bar will allow the public web access to all records related to discipline, offering up the Notice of Disciplinary charges before any court has seen it is not to inform the public but rather to attempt its influence. The Notice of Disciplinary Charges often fails to state disciplinable charges. Yet even exoneration of specific charges will fail to remove them, which endure in perpetuity, while within sixty days, the State Bar would excise proof exonerating a respondent of all charges.