66A Installment. Officer-of-the-court jurisprudence

Second in the Mark Brennan Series

Judge Robert E. Blackburn's complaint in the Mark Brennan disbarment case permits a glance at the jurisprudence grounding judges who seek to impose state-bar discipline for ordinary trial conduct. Judge Blackburn approvingly quoted the Polansky court ("Complainant's Response to Respondent's Motion To Dismiss"):

Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means for achieving the court's ultimate goal, which is finding the truth.

(Polansky v. CNA Ins. Co. (1st Cir. 1988) 852 F.2d 626, 632.)

The Polansky court and Judge Blackburn express three opinions that are contrary to professional consensus: 1) A lawyer's primary responsibility is not to his client but to the court; 2) zealous advocacy is encouraged only as a means of reaching the court's goals; and 3) the court's ultimate goal is truth.

Usually, first-year torts classes dispose of the cartoonish view that the court's ultimate goal is truth. Many public-policy considerations having nothing to do with truth's pursuit drive civil procedure, but although the Polansky court and Judge Blackburn are outside the professional consensus, the consensus makes a dangerous concession in accepting that the adversarial element serves truth finding: truth emerging from conflict. Our legal system as a whole obviously doesn't subordinate all interests to truth finding, yet many lawyers believe adversarial procedures exist to promote truth. This view leads the consensus toward endorsing Polansky's conclusion, while rejecting its reasoning — leads to limiting legitimate adversarial conduct to what furthers truth finding; but truth finding isn't adversarial procedure's distinguishing function or its overarching purpose. In overall accuracy an inquisitorial system is inherently superior to an adversarial one: does anyone think that testimony from hired gun experts better informs a jury than neutral investigators chosen by an unbiased judge? A trade off of lower accuracy for less rights-violating injustice, adversarial procedure favors rights protection over truth finding. Rights protection, not truth finding, justifies adversarial process.

Judges who believe fealty to the court's truth-finding ideals outweighs loyalty to client will consider extraordinary loyalty as misconduct. These judges' naive moralism doesn't promote precision; the judge espousing an open-ended duty owed the court is subjective. A court holding an officer-of-the court jurisprudence will be dissatisfied for the same reason a client is unhappy: the lawyer's limited zeal for itself.

In contrast to the moralism of Judge Blackburn and the Polansky court, the Koufakis trial court (unfortunately reversed) took a sophisticated, nonmoralistic perspective in deciding an attorney's conduct didn't warrant a new trial. Pointing out that "wrenching little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial, and in my opinion there was not the prejudice [which the defendants] suggest," the judge further explained to the attorney moving for an order declaring mistrial:

Your style is entirely different from Mr. Berg's, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. ¶ Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. ¶ If you had mentioned the Mafia, then they would have taken you literally. ¶ Mr. Berg's mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. ¶ They simply didn't take this kind of analogy seriously. ¶ This is the kind of exaggeration that they had come to expect from a flamboyant individual.

(See Koufakis v. Carvel (2nd Cir. 1970) 425 F.2d 892, 901.)

The trial judge candidly admits he prefers the less flamboyant style — it's easier on the judge. When a less insightful or less honest judge replaces concrete legal reasoning with moralistic judgments, often they screen for the judge's prejudices.

Click for entire Mark Brennan series

Ten-Day Sale

I live in the high desert of California, where this time of year the temperature regularly climbs above 100 degrees. One seldom ventures outside in this weather, leaving abundant time for work. Seeking more work to occupy more time, I'm declaring a ten-day sale on legal-writing projects. This sale, ending after August 10, features a $50 per hour fee. For any state-bar or vexatious-litigation matters, the price is only $30 per hour.

66th Installment. Threat to advocacy from overdeterrence — The Mark Brennan case

First in Mark Brennan series
Judges who minimize law's adversarial element will use the state bar to punish successful attorneys. The judge and complainant in a Colorado case, similar to the Kay case in California, exposed the jurisprudence that underpins disciplining for zeal. This first Installment in the Mark Brennan series sets out the case background.

Attorney Mark Brennan seemingly won his client a $1.2 million age-discrimination award against his employer the City and County of Denver, but Judge Blackburn declared a mistrial based on Brennan's allegedly prejudicial misconduct, mostly speaking objections and the like. A $850,000 settlement ensued. The judge also complained against Brennan to the state bar. The case is similar to the Kay matter in California: 1) respondents had been successful in court; 2) respondents conflicted with a powerful embroiled judge, who caused the courts to treat the matter as political, instead of legal; 3) respondents had long, successful careers without prior discipline; 4) courts have denied respondents discovery and other evidentiary rights concerning bar deliberations; and 5) respondents received no final judgment against their conduct in the underlying case. (But the cases aren't identical. First, overt procedural irregularities are present in the Kay case because Kay was defaulted, Brennan wasn't. Second, the kinds of character attacks each faces is different, in that Kay has never been accused of violence; but the character attacks against Brennan, too, may be inaccurate.)

The Brennan prosecution admits that Brennan's specific acts don't constitute misconduct, but it argues that the totality of evidence proves it: even if the prosecutor can't articulate a definition, he knows misconduct when he sees it! Brennan's prosecution and Kay's portend that attorney-misconduct's vagueness will compound disbarment's ultimacy to overdeter, suppressing vigorous trial advocacy. Unsure of the line between aggressiveness and misconduct, advocates become obsequious, knowing a mistaken speech register risks their livelihoods. A hostile judge will crush a case, augmenting judicial power the hidden purpose of disbarring attorneys for trial misconduct when borderline misconduct non-normative only in amount is alleged. Attorneys gamble on distinctions and accept the reasonable risk of mistrial. Good trial attorneys readily adjust their behavior to new trial contingencies, but none will venture on the extraordinary risk of disbarment.

While the Brennan case lacks the Kay case's procedural infirmities, it contains an oddity. The judge declared a mistrial only after the jury rendered its verdict. The only new fact was how long the jury deliberated, three hours, for an eight-day trial. The judge implies the duration was excessively brief, but, while the law allows declaring a mistrial because the jury deliberated a disproportionately long time, Colorado's Supreme Court ridiculed declaring mistrial for brief deliberation. (Sepulveda v. People (Colo. 1961) 361 P.2d 625, 626.) Even if the judge can justify mistrial based on his mere change of mind, his close decision fails disbarment proceedings' clear-and-convincing-evidence test.

Next in Mark Brennan series: The jurisprudence of judicial vindictiveness

65th Installment. The state-bars’ public-protection myth & the misguided remedy of suspension

The state bars' official purpose centers on public protection, but the state bars' real purpose has always been punishment and deterrence. The mischaracterization serves both public-relations and legal purposes.

The public itself doesn't see state bars as functioning for protective purposes. A recent Los Angeles Times editorial expresses the common attitude of the public:

Whether Yoo or Bybee breached legal ethics in that way has been the subject of an investigation by the Justice Department's Office of Professional Responsibility, which can recommend discipline to state bar associations. That process, not a civil suit for damages, is the best way to hold lawyers accountable for malpractice.

http://tinyurl.com/mvyt4z

This is the widely accepted popular view: state-bar discipline holds lawyers accountable; but holding accountable isn't a public-protective function. Accountability is the essence of deterrence, the primary function of punishment, and a component policy behind civil-litigation procedures.

When state bars claim their purpose is public protection, the bars focus only on the severity of detriment, on which its opinions, as well as those of the courts of record, dwell. A punitive system should match severity of deterrent to offense's seriousness and inversely to probability of apprehension. A protective system, in contrast, should match preventive measures to likelihood of committing further harm. Neither courts nor legislatures analyze the class of disciplinary measures serving the screening function assigned to state-bar discipline: most notably, what role does graded discipline serve for a system supposedly protective? Punishment by degrees of severity suits a deterrent or retributive system, where punishment should fit the crime.

Suspensions play no rational role in a protective system because character defects aren't time limited. Courts surreptitiously slide into a deterrence-oriented mental set when they impose suspensions. Deterrence is secondarily protective, confusing the issue when the state bars insist they are not deterrence's instrumentalities. The public accepts punitive but unprotective disciplinary measures, such as suspensions, because of tacit recognition that civil litigation insufficiently deters.

Understanding that state bars provide a deterrent that the Legislature can't abolish without replacement is a first step both in compelling the state bars to stick to actual public protection and reforming the laws governing civil litigation so they deter attorney misconduct. Attorneys today are already subject to a few civil sanctions for technical misconduct. When an attorney improperly divides a fee, it is forfeit. That's enough deterrence to render the state bar rule against fee splitting — hardly an index of moral turpitude — unnecessary for deterrence's purposes. This law illustrates how to deter the range of technical misconduct falling short of moral turpitude: relieve the wrongdoer of his ill-gotten gains. The mechanism can be widely applied to the gamut of misconduct violating rules and statutes deemed administratively necessary for the profession. If the attorney, for example, engages in unlawful solicitation, allow the solicited party's refusal to pay attorney fees, enforceable in the civil action or in the underlying action. Wrongdoing not involving moral turpitude in the strict sense shouldn't concern the state bars, and moral turpitude should have only one disciplinary consequence, disbarment. Disbarment is the only disciplinary measure serving a strict screening function; limiting discipline to disbarment follows from limiting the state bars to the protective function they claim as exclusive domain.

The expressed policy of public protection, not the actual policy of deterrence and retribution, is the correct policy, but the public-relations myth of state-bar dedication to public protection forms the basis for denying state-bar respondents the protections favoring criminal defendants. Proof before state bars need not be beyond a reasonable doubt, and a jury doesn't find culpability. In state bar matters, proof is in principle by clear and convincing evidence; a respondent in reality is lucky if afforded a preponderance-of-evidence standard. Prosecutors decide that a case goes to trial, one sub-Article 6 judge decides the facts, and state-bar respondents can't plead self-incrimination when inculpating matter concerns only state-bar charges. These practices would never survive constitutional scrutiny if courts recognized that state bars mete out punishment.

64D Installment. Ha!Ha! The State Bar Court thinks it has inherent powers

(5^h in Philip E. Kay series)

The State Bar's justification for defaulting Philip E. Kay has evolved or rather devolved. The State Bar first argued that discovery procedures could do double duty at trial. Unable to support this argument to justify radical expansion of discovery's domain, the State Bar tried a different line: failing to appear at trial includes refusal to testify. Still without an argument to make respectable its self-serving deafness to all distinction, the State Bar's July 1 reply emphasizes yet another fantastical theory: the State Bar Court's "inherent powers" authorize striking Kay's answer.

Despite an extensive California case law on the inherent powers of courts, the State Bar quotes no California cases; introducing California law would make this argument's meritlessness too obvious, since under California law the inherent powers of the courts derive from Article VI, section 1 of California's constitution. (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267.) The constitution defines "courts of record": the superior courts, Court of Appeal, and the Supreme Court; as only Article VI courts of record have inherent powers, the State Bar Court has none. "[E]very court of record has powers requisite to its proper functioning as an independent constitutional department...," the Supreme Court repeatedly recites. (Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [emphasis added].) Inherent powers are specific to the courts of record because these powers are based on the separation of powers between governmental departments, a club the State Bar Court doesn't belong to. The State Bar Court has no judicial powers — hence, no inherent judicial powers — these vested in the courts of record.

The constitution vests judicial power in specific courts and denies judicial power to all other agencies. Many institutions nominally "courts" aren't courts for constitutional purposes. The Supreme Court resolved where the inherent powers of courts end when it held that striking an answer is an unconstitutional sanction without an order from and hearing before an Article 6 judge. (Summerville v. Kelliher (1904) 144 Cal. 155.) Commissioners, notaries, and other sub-Article 6 judicial officials, such as State Bar Court judges, could not thereafter constitutionally exercise any supposed inherent power.

The State Bar Court, an administrative arm of the California Supreme Court, doesn't inherit the Supreme Court's powers. The State Bar Court is a statutory creation, and statutes alone define its powers — none inherent.

Interlude 12. State-bar establishment: Pro bono for the banks

As the economic depression deepens so does political oppression, as the police are the instrument forcing an adverse orderliness on the enraged and impoverished. When banks today mount a collections' offensive against the public that financed their rescue, what role will lawyers play in helping the poor and indebted resist the onslaught? None if the state bars, specialized branches of the police-prosecutor apparatus, have their way. In three jurisdictions, the state bars have already disbarred or denied admission to lawyers for carrying excessive debt. For the state bars, indebtedness is moral turpitude!

In New York, appellate judges, who form part of that state's bar establishment, held Robert Bowman ineligible to obtain a law license for reason of moral character, that reason being specifically: "Applicant has not made any substantial payments on the loans. ... Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law." Bowman had incurred the typical huge debt to finance law school and then experienced medical adversity, impairing his ability to work and adding much more debt.

In another case, a Texas lawyer was disbarred for defaulting on his student loan; the court opined that Frank Santulli III's nonpayment showed his untrustworthiness to represent clients and raised the specter that "he will harm a client, obstruct administration of justice or violate the disciplinary rules." To make no mistake on where the bar stands on indebtedness, the Texas State Bar had conditioned Santulli's license on paying his debt. A news report informs that the Texas case isn't isolated: Minnesota had already disbarred an attorney for student-loan default.