61st Installment. State Bar: For employers, against employees

National-state-bar establishmentarians discussed the unwarranted discipline for an attorney's trivial misrepresentation regarding the dates of his employment. (See http://tinyurl.com/d4ftll) Here's how the California Bar Journal summarized the case:

[An attorney] was suspended for one year, stayed, placed on two years of probation with an actual 60-day suspension and was ordered to take the MPRE within one year. The order took effect Aug. 1, 2008.

[He] stipulated that he presented an outdated resume to a prospective employer, committing an act of moral turpitude.

He left the law firm where he worked when it downsized and hired a resume writing service. However, his new resume was not ready when he heard about a job opening, so he submitted an old version, without revising the dates of his previous employment. The resume gave the impression that he was still employed.

[He] later faxed a new resume to the prospective employer but it did not clarify his dates of employment.

David Cameron Carr, president of California-bar-defense-establishment Association of Discipline Defense Counsel, commented revealingly:

Yes, it struck me as unduly harsh, as well, but unfortunately in keeping with the punitive mindset of California State Bar prosecutors since Scott Drexel took over as Chief Trial Counsel in 2005. Almost every discipline decision in California and probably most other states recites that discipline is not punitive but exists to protect the public. It is getting harder and harder to keep this pretense up; those of us who deal with the discipline prosecutors on a daily basis in California see discipline driven by a desire to punish lawyers whom they have decided are bad people. As a former discipline prosecutor (and a former member of NOBC) it is distressing. This punitive mindset has galvanized discipline defense attorneys to formalize our defense bar organization, the Association of Defense Discipline Defense Counsel.

Unlike the Mike Moity case, in which an attorney faced discipline for the tone of voice he took with a magistrate's law clerk, the bar justified discipline under the moral-turpitude standard. Moral turpitude is the one true reason for discipline, but this prosecution shows that unequally applying the right qualitative standard leaves injustices: abuse of prosecutorial discretion and biased meddling in attorneys' disputes.

A guilty defendant can rarely mount an equal-protection defense, giving American prosecutors almost unbridled discretion over charging a lawbreaker. (Sheer, Prosecutorial discretion, Georgetown Law Journal (June 1998).) Prosecutorial discretion advantages the prosecutor's office, which can reward cooperative defendants with reduced charges, a process formalized in plea bargaining. When a lie is widespread but the bar prosecutes only an isolated case, the bar institutes a means of unequal treatment usually unchallengable judicially. Who knows what led a prosecutor to select one person to prosecute, what perhaps private and probably corrupt motive induced the bar to file charges in this minor "resume fraud"?

Yet here we can discern a definite purpose: the State Bar's support of the class of employer attorneys, support shown by the unusually high ethical standards applied one-sidedly to business negotiations outside legal practice. Extraprofessional conduct gets less scrutiny in discipline proceedings: attorneys aren't disciplined for a slightly inaccurate apartment-rental application. The negotiations between an attorney and his boss belong to the business of law, not its practice.

What the State Bar refrains from doing also proves its bias favoring employers. If the bar prosecuted employers for lying to their employees, the bar could handle nothing else, so accepted and widespread is the mendacity of employers, including attorneys. Will the bar discipline this attorney's employer when, informed of the applicant's unemployment, the employer denies him the job and protects his own reputation for fairness by lying about the reason? The bar won't be prosecuting the prevaricating employer for moral turpitude, yet the bar disciplined this attorney for efforts to avoid suffering prejudice. Until the bar charges discipline violations against employer attorneys when they lie to their employees, it should keep hands off employee attorneys who return the favor.

60th Installment. California State Bar becomes bar-establishment laughing stock

The California State Bar became laughing stock of the State Bar Establishment when the attorney general charged clerk Sharon Elyce Pearl with embezzling $675,000. She had persisted for eight years before the California State Bar noticed. (See http://tinyurl.com/ceydkh)

A Legal Ethics Forum blogger posted:

Sad Irony: State Bar victimized by (alleged) staff embezzler: We've all heard countless times about a solo practitioner facing disciplinary consequences because the lawyer's admin embezzled funds. (http://tinyurl.com/cz9rde)

The State Bar Establishment's embarrassment isn't misplaced. The California State Bar, which terms misappropriation by staff a supervising-attorney's willful act—casually adding charges of moral turpitude when any evidence of failure to supervise can be found—proved during an eight-year period that its moralistic stance is a pose. Although the clerk didn't embezzle clients' funds, the ethical culpability is the same because the State Bar held the money as fiduciary of the people and government of California. "All property of the State Bar is hereby declared to be held for essential public and governmental purposes in the judicial branch of the government..." (Bus. & Prof. Code, § 6008.) The Office of the Chief Trial Counsel, the prosecutorial entity, bears blame because that Office is charged with internal-oversight duties by the same law authorizing the State Bar's prosecution of disciplinary complaints. (Bus. & Prof. Code, § 6044.)

If the board of governors, which runs the State Bar, can't supervise ordinary commercial operations, how can it supervise the Office of the Chief Trial Counsel? The board of governors was designed to be ineffectual: consecutive (three-year) terms are prohibited, only annual meetings are mandated, and six members must not be lawyers. The Legislature disempowered the board of governors intending to empower the California Supreme Court, the State Bar's other supervisor, but since the Supreme Court has shown that its objectivity departs when the court hears allegations against its State Bar administrative arm, the feebleness of the board of governors unfetters the Chief Trial Counsel. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4.) Even the sycophantic State Bar Defense Establishment complains about the abrupt change in punitiveness and moralism when a new Chief Trial Counsel takes over.

This comedy isn't one of the gravest harms wreaked by the lawless State Bar, but its reckless failure to supervise public appropriations proves its ethical hypocrisy.

59th Installment. Attorney suspension for disrespect of court by proxy

A federal court issued a one-year suspension to a Louisiana attorney who disrespected a magistrate's law clerk. The attorney snapped at the annoying clerk, magistrate's delegate for a post-hearing telephone inquiry about his absence. The clerk had baited him with carping rhetorical questions and condescending repetition of his name, irritating the tired attorney. Here's a taste of his curtness according to the appellate opinion, a quick 10-page read at http://tinyurl.com/cujt29:

Ms. Blancke told Mr. Moity that there was no reason to get upset, that this was a professional phone call to assess why he had not returned the court’s phone calls and why he’d failed to appear at a court-ordered conference for the purpose of the court’s assessment of sanctions. At some point, Mr. Moity cut Ms. Blancke off in mid-sentence, yelling “Stop saying ‘Mr. Moity.’ You’ve said my name about 5 times, I know my name!”

The 5th Circuit’s denial of Moity’s appeal concluded:

Moity further argues that disbarment was an inappropriately severe punishment for his “curt conversation,” as he calls it. The conversation reported by the magistrate judge’s law clerk displayed severe disrespect to the court by the anger and harsh tone shown to a representative of the magistrate judge. In re Moity, No. 08-30826 (5th Cir. April 7, 2009) (Smith, Stewart and Southwick) (per curiam; unpublished).

Other alleged ethics infractions aggravated the offenses charged against R. Michael Moity Jr. The 5th Circuit held he testified dishonestly at the contempt hearing, but the facts don't clearly and convincingly prove Moity intended deceit. Moity’s brief accused the District Court of misconduct by discussing the case ex parte with another judge who had held Moity in contempt, accusations for which the District Court charged him with impugning two judges' integrity. Even the 5th Circuit found this charge unswallowable yet neither affirmed nor reversed it.

Abuse of disciplinary authority so gross it disturbs even the State Bar Establishment (see, for example, http://tinyurl.com/cvrbaa) can reveal State Bar oppression's intensifiers. The Western District of Louisiana disciplines attorneys using unique procedures letting any judge initiate and decide attorney discipline. Instituting practices magnifying complaining-judges' influence performs an experiment relevant to other jurisdictions, where judges' complaints start many disciplinary proceedings. The California State Bar, by rule, must investigate a judge's complaint, and the State Bar, by habit, defers to the complaining judge on the ultimate question, even if the complaint apparently arose out of a personality clash or a zealous attorney's warranted resistance. The Richard I. Fine case, notably, involves complaints by judicial officers, such as Judge Yaffe and Commissioner Mitchell, both reputed vindictive and unable to admit error. The State Bar’s readiness to prosecute on a judge’s complaint expresses not only its opportunism and authoritarianism but also a strain of its core pathology: finding ethical culpability for impropriety’s appearance, as visited by a judge accusing an attorney of misconduct.

The 5th Circuit should publish a legal outcome so novel. The courts — wanting to render agreeable decisions without being held to principles — undemocratically decline to publish weak opinions that would make new law. The opinion dodges whether alleging judicial misconduct constitutes a disciplinable offense: subtracting one third of the charges should reduce the discipline's severity. The 5th Circuit, affirming the entire aggravation without deciding part of its justification, didn't resolve the presented controversy.