Monday, March 30, 2009

58th Installment. No discipline without proof of moral turpitude!

Although criticizing the moral-turpitude standard as vague is a popular if futile tactic of State Bar respondents, the remedy for the State Bar's main pathologies, embrace of strict ethical liability and imposition of culpability for impropriety's mere appearance, is that the State Bar adopt a narrow and exclusive moral-turpitude standard for discipline. Principled opponents of the State Bar take opposite positions on the moral-turpitude standard. Noting that California is the only state using the concept of moral turpitude, some urge its abolition in California, where it was once a bulwark against expansion of State Bar power. (See In re Fahey (1973) 8 Cal.3d 842.)

Eliminating the moral-turpitude standard would leave a hodgepodge of rules, pragmatic in their lack of guiding principle, containing no internal bar to their expansion, and, like obscenity law, propelled down that road, but making moral turpitude precise depends on adopting a narrow definition. (Cf. Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 (dis. opn. of Brennan, J.).) In broad, commonsense typologies, acts of deceit take two forms, lies and broken promises, and a broad moral-turpitude concept is rooted in this broad concept of deceit, whose indefiniteness allowed moral turpitude to expand far beyond deceit's borders. The common law treatment of deceit—a breach of promise is not a legally cognizable public wrongdoing, becoming so only when the promise was secretly unintended—is a better guide. Thus, breach of contract is not ordinarily tortious, is not subject to punitive damages, but promissory fraud is both. Legal ethics should retain the common law's concept of deceit, a narrow category tightly linked to lying.

An argument against the narrow moral-turpitude standard's exclusivity is that the space between incompetence and deceitfulness is filled with numerous other character flaws from which the public supposedly needs protection. Does the public need protection from substance-abusing attorneys? (See, for example, In re Nadrich (1988) 44 Cal.3d 271.) Belief that the State Bar should protect the public from varied attorney-selection risks is an ideological obstacle.

Overdeterrence distorts societal priorities, as a worthy no less than Chief Justice George failed to understand when he campaigned to fund court expansion by taxing convicts, punishment severity a matter too serious for political opportunism and fiscal convenience. The public needs protection from narrow moral turpitude because the practice of law creates unique criminal opportunities, but the public should not assume the social burden, such as limiting attorneys' constitutional rights, of specific State Bar disciplinary "protection" against all manner of inferior or improper attorney performance.

Another example of ostensible public need for protection broader than a narrow moral turpitude standard provides: an attorney isn't supposed to communicate with a represented party. On what principle should the State Bar base enforcement of a rule such as this restraint on communication, since talking to a represented party isn't deceitful? One line of response defeats the anti-expansionist purpose of the proposed exclusive attorney-discipline standard: that the communication is deceitful because it's against fair play, and cheating is a form of deceit. Once deceit is stretched beyond connection with the well-defined concept of lying, the standard's advantages dissipate. 

The rule should be questioned rather than the definition of "moral turpitude" stretched if the profession can't legitimately discipline an attorney for a rule violation. Whose interests besides the attorney guild’s are served by dictating an attorney shouldn’t communicate with a represented party, and why do clients with attorneys retained need protection beyond their ordinary right to hang up the phone? One advantage of a reluctance to multiply causes for discipline is it helps see the superfluity of purportedly ethical rules properly beyond discipline's reach.

Moral turpitude isn't the only conduct that should affect eligibility to practice law; one (and only one) additional standard should apply. Regulation of the practice of law will also include extirpating incompetence (assuming practices so close to basic free speech and petition rights should be regulated). Although the total harm caused by attorney incompetence is surely greater than by moral turpitude, discipline isn't the remedy for incompetence, the condition hard to distinguish from bad luck except by written re-examination.

Monday, March 2, 2009

57th Installment. Against sentimentalizing misappropriation

Irate clients lambast the State Bar for laxity, I castigate it for oppression, and the uninformed might conclude that the truth lies between. But both criticisms apply, not only because the State Bar is incompetent. Rather than lax or severe, the State Bar is unconcerned about the most important wrongdoings and exaggeratedly concerned about the less important. More exactly, its concerns follow its pecuniary interest.

What's the worst harm an attorney can inflict on a client? If you listen to the State Bar, you'll think misappropriation of the client's money. No doubt, an attorney who embezzles client funds is unfit to practice law and should be disbarred, but the State Bar's Chief Trial Counsel advises attorneys of a different threat to their livelihood when he states the main risk they run for disbarment is misappropriation by staff. (See Embezzlement justifies ejection from the profession because it is a crime of deceit. Courts comment that "willful misappropriation" encompasses a broad spectrum of acts (Edwards v. State Bar (1990) 52 Cal.3d 28, 38), yet the State Bar denominates them with a single term. Embezzlement and negligent misappropriation are essentially the same only to the State Bar, which has a financial interest in the client trust funds. The courteousness of the Chief Trial Counsel's recommendation shows he realizes attorneys who trust their staff excessively don't manifest the despicable traits of character justifying disbarment for embezzling client funds.

The public's impression that negligent misappropriation proves lack of fitness to practice law comes from the State Bar's misleading sanctimony tying mistakes in handling funds to disloyalty to client. Misappropriation can impose damaging delays on recovery, but, a well-kept secret, losses due to fraud are reimbursable by expedited Client Security Fund procedures: the clients' protection from office fraud is not, today, the attorney's primary duty. But, in an earlier day, the California State Bar balked at establishing a client security fund. In 1969, the Court of Appeal commented on the State Bar's procrastination and on the absurdity of relying on the attorney as guardian of client funds. The court pointed out that by 1967, twenty client security funds were established in twenty foreign jurisdictions, 28 states and eight local bar associations, but "the State Bar of California, instead of leading in this work, has been lagging. Although the State Bar has been studying the matter since 1961 [citation], it has yet to take action." (Blackmon v. Hale (1969) 78 Cal.Rptr. 569, 582 [withdrawn for other reasons].) The Court of Appeal parodied the State Bar's moral message:
Turn your money over to me and I'll take care of it, but if I steal it you will have no recourse against anyone but me. Not only that, but as your attorney I may claim offsets for fees earned and disbursements made on your behalf and prevent any accounting or audit of the money for years, during which time you will have no remedies against me except to usual ones of any creditor pressing a contested claim against a denying debtor.
(Id., at p. 580.)

The State Bar partly abolished client serfdom in 1972, and the Client Security Fund indemnifies for misappropriation up to $50,000. With indemnification's advent, misappropriation isn't the worst injury an attorney's office can inflict on clients. The actual worst commonly happens in the ordinary incompetent handling of cases, usually not constituting actionable malpractice. An attorney's fundamental ethical duty of client loyalty is undermined by the State Bar's disciplinary emphasis on misappropriation (and disobedience). A loyal attorney must prioritize effort based on client legal interest, but anachronistic rules assigning the attorney exclusive personal responsibility for safeguarding funds distract attorneys from attending to the client's real interests. The State Bar's sentimentalizing of the attorney-client relation diverts attorneys, distorts professional ethics, and blocks further improvements in client security, like the needed tenfold increase in Security Fund coverage.