64th Installment. The Philip E. Kay Calumny

kanBARoo court began with a case (mine) illustrating the State Bar's legal incompetence; today we begin to look at a case where the State Bar takes incompetence to its culmination in a discipline proceeding to disbar a lawyer because he is too competent. The 129-page Notice of Disciplinary Charges delves into the bowels of the trial process to reinforce biased judges' control by disbarring an attorney with demonstrated ability to persuade juries, despite these judges' best efforts to shield Kay's giant corporate opponents, which include Ralphs Grocery Stores and the international law firm Baker & McKenzie.

The Notice of Dislciplinary Charges summarizes the charges at paragraph 375:

By repeatedly making speaking objections, gratuitous comments, asking the identical or near identical question to questions that had been asked and/or objections sustained to, and arguing in front of the Gober I, Gober II, and Marsicz juries during the evidentiary phase of the trial; by repeating making motions in front of these juries, including motions for mistrial and a motion for a directed verdict, despite the courts' warnings and orders and sustaining of motions to strike and objections; by repeatedly making improper and false accusations against counsels and the courts; by repeatedly suggesting, implying, and directly stating to juries that there was other evidence of misconduct that he were prevented from presenting to these juries; that his clients were being denied a fair hearing; that the evidence of the opposing parties' misconduct was being improperly suppressed or hidden from the juries, in violation of court orders not to disclose information; by repeatedly being rude and unprofessional to the courts and opposing counsels, by repeatedly violating his duties as an officer of the court to act professionally and respectfully to the court, opposing counsels, and other parties; and by his repeated failure to abide by the court's orders and ruling, and assist in the pursuit of the court proceedings, respondent Kay wilfully committed an act or acts of moral turpitude, dishonesty, and corruption.

Ordinary courtroom tactics! Ever since a juvenile Sonia Sotomayor learned law by watching Perry Mason on TV, everyone has known that attorneys don't obey every judicial command or abide by every provision of the law of evidence. Any nonprofessional recalls how at the end of a strong line of inquiry, Perry or D.A. Burger would ask an improper question, only to withdraw it immediately. Like playing pinball, a trial lawyer must play close to the edge of losing by tilt. Unlike pinball, legal rule boundaries aren't mechanically fixed; they vary from court to court, for one reason because judges will hesitate to invoke their terrible contempt powers while they themselves commit misconduct. A pinball player hasn't tilted unless he forfeits; an attorney in open court hasn't culpably violated a court order unless held in contempt. The State Bar has become the instrument of biased judges seeking vindication proven unjustified by their reluctance to hold Philip Kay in contempt of court.


This Installment begins a series on the Philip E. Kay State Bar Matter. The following subinstallments will discuss the threat to all lawyers of the State Bar's ability to bring moral-turpitude charges for common trial tactics; the State Bar's fee-splitting charges; the significance of belated charging (7-year investigation of a matter based on public record); and more.

Interlude 9: More Light on Mike Moity's Outrageous Disbarment

Magistrate Judge Methvin joined the fray on R. Michael Moity Jr.'s outrageous disbarment. Judge Methvin posted on "Legal Blog Watch" (http://tinyurl.com/o9yw2k):

I am the magistrate judge in question, Mr. Roberts, and find it quite amazing that you feel comfortable announcing with confidence, not knowing anything about her, that my former law clerk, Ms. Blanke, "had this snarky and royal character and this is why she took notes and then revenge." Ms. Blanke, who now works as a law clerk to a district judge, is one of the most polite, hardworking and dedicated lawyers I know. At the time of this incident, she had worked for me for eight years, and if you ask the members of the Lafayette bar about her, you will hear that she is uniformly liked and respected, and that her attitude to the bar is the antithesis of "snarky" or "royal." As a federal magistrate judge, I consider myself neither a royal nor a bureaucrat, but a public servant - and that is the attitude I work to instill in my staff. Furthermore, this blog does not fully describe the extent and tone of the conversation in question, nor the nature of the previous disciplinary offenses which came to light in the course of court hearings. For that, you will need to read the full, published record. As for Ms. Blanke's desire for revenge, you should know that after the phone call, Ms. Blanke came to my office visibly shaking, upset, and sick to her stomach. She questioned over and over whether she had done something wrong to make the conversation go so awry. Far from relishing her "revenge," she lost sleep for several weeks afterward, and found the ensuing hearings quite painful. It is a shame that your personal experience has left you so bitter and biased that you are willing to engage in gross generalizations which demean all federal judges and their staffs. Mildred E. Methvin

Having reviewed the record, I found despicable Judge Methvin's conduct, not Attorney Moity's. I posted:

Judge Methvin, you are no better than the snarling pack of your supporters, who think nothing more is required to disbar an attorney than to accumulate vague attacks on his character. You would be respondent before a fair disciplinary panel for willfully prejudicing a federal court. You told the court of instances where you had "heard" Mr. Moity had been rude to women, and, in that, you exploited your position unfairly to further your feminist agenda. You repeat the same misconduct here when you dwell on your your clerk's distress, which one can only hope expresses her sense of guilt. Eight years a law clerk? She obviously lacks the mental toughness to practice law.

Former law clerk Bob Roberts, the immediate target of Judge Methvin's post, highlighted the federal judiciary's arrogance:

I clerked for a federal court judge. They are the most pompous people I have ever met and can infect the clerks who become royal. My judge also taught at 2 law schools and used these to hire externs and clerks and from these his girlfriends. The pool of clerks and externs was basically his harem. He hires nearly all young pretty girls. He was known to be sleeping with one of the clerks and his marriage had earlier been broken up because his wife caught him with another clerk. He uses his position to get sex. Despite this, the judge imagines himself to be a pillar of integrity and expects an obsequious manner from everyone. And so did nearly all the judges and circuit court judges I met. The clerks basically defined snarky. Mr. Moity's clerk had this snarky and royal character and this is why she took notes and then revenge.

An an apt reply to Judge Methvin was posted anonymously:

Judge Methvin: I think bob should be sanctioned for his blog comments.

63rd Installment. State Bar Court Review Department: Remorseless Demagogues Lamenting Remorse’s Absence

The California State Bar Court's Review Department is prone to apply a remarkably totalitarian standard in assigning aggravations to offenses: it assigns an aggravation for lack of remorse if respondent denies his culpability. (See Rules Proc. State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(b)(v) [standards for aggravation].) The Review Department is apt to play this mean trick when it wants to affirm the Hearing Department's discipline but can't justify it fairly. The Review Department may further contend that respondent's theory of the case shows respondent is apt to re-offend. Aspersions on the political motives of judges — who, as elected officials, no doubt have political motives — the Review Department receives clinically, as symptoms enhancing the likelihood of repeating. These holdings ignore California law, as California prohibits using a not-guilty plea as evidence of absence of remorse. (People v. Coleman (1969) 71 Cal.2d 1159, 1168.) California law, unfortunately, allows using absence of remorse as a sentencing factor. The hypocritical attitude toward remorse is one of the worst examples of the rampant formalism in criminal law. Remorse is well suited as entry point for the bleakest expressions of the State Bar's show-trial mentality.

The nearly universal practice of using remorse for sentencing intrudes an unctuous sentimentalism into the courtroom. Where is respect for truth when the criminal court punishes honesty and rewards hypocrisy? This regressive parentalism infantilizes participants. Absence of remorse is said to predict recidivism, but defenders of remorse-based sentencing don't present data to support this claim. In natural settings the truly remorseful prove themselves free of that developmental absence of morality termed psychopathy, but psychopaths are often skilled actors. A persuasive show of remorse is too ambiguous for assessing defendants' intractability.

Criminal defendants who plead not guilty, as opposed to those who show their lack of remorse despite a guilty plea, are more likely to repeat and are harder to rehabilitate, but just where remorse is predictive, its use is illegitimate. To require remorse of a defendant who claims innocence violates due process at its foundation, the right to be heard. A defendant doesn't exercise this right when the state puts gun to his head and tells him what to say.

Some courts hold that, after the court convicts him, it can penalize the defendant for lack of remorse if he still denies guilt. But even in the sentencing phase, a defendant can maintain that the high likelihood his conviction was error mitigates the offense, and as it is illegitimate to demand that a respondent claiming innocence show remorse, it is also illegitimate to demand that one admitting guilt acquiesce to the state's view of his offense. Either restriction fetters defendants' arguments.

Sentencing based on whether defendant shows remorse is a common-law inheritance that should be invalidated on constitutional grounds. Criminal-court jurisprudence bases controlling distinctions on where in the trial sequence the court applies a standard, but only in the mind of a formalist lawyer (or a nonprofessional who accepts folk ideology as truth) is there a difference in principle between charging a person for a thought crime or increasinng a sentence for a subsequent thought crime.

Any constraint besides persuasiveness on the content of a defendant's courtroom speech limits persuasiveness by penalizing its straightforward pursuit. A constraint on defendants' and respondents' persuasiveness in the courtroom violates their right to be heard.

(See also 33rd Installment. Remorselessness.)

62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred

The Justice Department leaked a draft report on its investigation of John Yoo and Jay Bybee. The report recommended that state-bar authorities investigate the pair — buck passing: the Justice Department is shirking its prosecutorial duties. The Justice Department can't be so naïve as to anticipate the state-bar establishment might disbar Yoo and Bybee.

Yoo and Bybee had devised irrational legal justifications for torture, helping the Bush Administration disguise its criminality. Even within the Administration, the incoming Office of Legal Counsel repudiated the Yoo-and-Bybee memos in 2003. No lawyer I'm aware of has publicly agreed with the memos' conclusions following publication, and their universally adverse reception discredits the common verdict that the opinions were ordinary errors of law. Since frivolous positions are defined as those unacceptable to any reasonable attorney, universal legal rejection of the memos' conclusions proves their frivolousness.

The torture memos aren't merely frivolous; ulterior motive also makes them vexatious. Frivolous positions often are honest mistakes of law, particularly those advanced by pro-se litigants. Unlike vexatious legal positions, frivolous ones don't show moral turpitude—a standard in California and one I have argued, correctly interpreted, serves as the proper standard for attorney discipline. The Yoo-and-Bybee memos were vexatious in their malicious intent, and their authors committed acts of moral turpitude. Jay Bybee, who coveted the 9th Circuit judgeship that became his reward, is a corrupt careerist. John Yoo is a staunch neoconservative reactionary, who, like his cothinkers, disguises absence of integrity with smatterings of utilitarian ethics. When Yoo decides a policy is best for the "general welfare," he simultaneously decides for its ethical commendability, reaching preconceived conclusions on moralistic grounds.

The state-bar establishment will never disbar Yoo and Bybee, despite their acts of moral turpitude causing injuries extravagantly worse than possible for ordinary lawyers. The concept of the state bar's enforcing ethical standards is thin veneer for pursuing political objectives of state, economic advantages of guild, and financial interests of its own, as the profession's supposed aversion to moral corruption isn't even deep enough for consensus that Yoo and Bybee committed disciplinable offenses.

To avoid challenging state-bar oppression and the ethical hypocrisy justifying it, the California-State-Bar-establishment's loyal-opposition Association of Discipline Defense Counsel justifies state-bar selective enforcement by urging that state bars don't function as an "ethics police" but as a "consumer-protection agency." The analysis is shallow in discounting the generality of unethical conduct that undergirds any protective system. If discipline is to protect consumers, ethical-rule breakers must be apt to repeat. If generalization is impossible, consumer protection is chimera. Pure consumer-protection analysis favors disbarring Yoo and Bybee because they're ethically unfit to practice law, but state-bar bureaucrats' charging Yoo and Bybee for incompetent legal reasoning, willful or not, is absurd to imagine, more so after a prestigious legal academy decided Yoo is sufficiently competent for hire, only 17 U.S. Senators voted against confirming Bybee for the 9th Circuit Court of Appeals, the 3rd Circuit arguably adopted the Yoo-and-Bybee analysis into law, House Speaker Pelosi acquiesced. and the dean of the Chapman University Law School (where Yoo is visiting) commended Yoo's torture analysis.

See also: "75th Installment. The Torture Memos & the Tortured Legal Ethics Justifying CYA Letters"