Saturday, December 4, 2010

85th Installment. California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence

kanBARoo court differs from most other judicial-system criticisms in declining to demand more prosecutions. Often critics respond to inequities in justice's administration by demanding prosecutions of the truly guilty, not just relief for the unjustly prosecuted. No doubt, one might derive satisfaction from reporting judges or gloating over their comeuppance, but this satisfaction comes at the expense of consistency and principle: advocacy of prosecution by a corrupt, oppressive, or incompetent agency contradicts the intended defense of due process. Only perpetration of crimes so great they overshadow the State Bar's defects—John Yoo is the only example that comes to mind—justifies supporting (never advocating!) state-bar prosecutions. kanBARoo court doesn't advocate prosecution even in the extreme case of Ronald N. Gottschalk or Melanie J. Lawrence. Nor did I report Lawrence's criminal misconduct to the State Bar as some advised; I refused even to report Kim and company to the police, as the state's prosecutorial authority differs from that of the state bar in its greater competence, not greater inclination to justice. Principled opponents of authoritarian oppression don't beseech the oppressive authorities!

Therefore, readers shouldn't interpret the following critique of failure to prosecute prosecutors as a demand for their prosecution. To avoid the misunderstanding of an important principle, I emphasize this caveat, even at the expense of the main message; but principles don't preclude publicizing and analyzing failures to prosecute, omissions laying bare the state-bars' mainsprings. With that caveat, I proceed with clear conscience to describe the California State Bar's astounding failure to prosecute prosecutors

Recently, the Northern California Innocence Project released a study of prosecutor misconduct staggering in demonstrating prosecutory bias. One fact stands out in this report: over the past decade, the State Bar has disciplined only six prosecutors for misconduct in prosecution. (Hat Tip to The Crime Report.) Business & Professions Code sections 6086.7 and 6086.8, subdivision (a), require judges to report misconduct that affects trial outcome, and mandatory "reported events" by judges produced approximately one thousand reports over the period studied, but of these, only six led to state-bar sanctions of prosecutors in criminal cases. For most practical purposes, we can justly say the California State Bar refuses to prosecute any prosecutor. (The only exception is the recent prosecution of four prosecutors, comprising the bulk of the six. This prosecution resulted from a power-struggle within the state bar that led to Chief Trial Counsel Scott Drexel's ouster and represented a crude attempt to appease the discontented state-bar defense establishment.)

The Mark Sodersten case shows how this refusal plays out, how the free pass given prosecutors is intentional rather than (somehow) merely negligent. Sodersten is one of the great success stories of the Northern California Innocence Project, which seeks exoneration for victims of the criminal-justice system who didn't commit the crimes charged. The California Court of Appeal freed Sodersten based on evidence the Innocence Project discovered proving he was the victim of withholding evidence by the prosecutor, who himself had interviewed the potentially exonerating witness, so there was no legitimate question about the concealment's willfulness. This prosecutor was a real fiend; can you imagine asking for the death penalty for a defendant who you know was convicted on falsified evidence? Since the evidence was exonerating, one can go so far as to say this prosecutor demanded the death penalty for someone he knew was innocent.
The California State Bar couldn't avoid opening an investigation of Philip Cline, then a Tulare County assistant district attorney, but it refused to find culpability, claiming insufficiency of evidence, a deficiency deterring the State Bar in no other prosecution. The free pass allowed this prosecutor to flourish: this attempted murderer is now district attorney for Tulare County.

Sodersten shows the California State Bar isn't merely lax about prosecuting prosecutors but actively resists finding prosecutors guilty. Opponents of the State Bar establishment have an interest in knowing why. One theory, advanced by the loyal opposition of the California State Bar establishment, the Association of Discipline Defense Counsel and its leader, David Cameron Carr. Carr, claims that the state bar is really a consumer-protection agency rather than an enforcer of ethical principles, implying that the disciplinary mechanism within government agencies adequately protects the public. The theory can't explain the intensity of resistance to prosecuting prosecutors; it explains at most a lack of emphasis on such prosecutions. Carr would have it that the State Bar doesn't consider prosecutorial misconduct important enough to prosecute, a premise that doesn't explain outright refusal to prosecute. The data also refute a theory I proposed, that the State Bar is unconcerned with prosecuting "government attorneys" because there's no money in it, the State Bar having an interest in the trust accounts of civil attorneys, as it retains the interest on these accounts. This too explains only lack of concern, not determined avoidance.

"Government lawyers" is a misleading abstraction. I haven't seen figures on prosecutions of other "government attorneys;" the record concerning public defenders would be particularly interesting. But even if the prosecution rates are low across the board for lawyers working for government, this 1) still doesn't explain active resistance to prosecution of prosecutors; and 2) doesn't explain why common sense and the obvious need for discipline for misconduct of the sort Philip Cline perpetrated doesn't compel making an exception to any rule exempting "government lawyers," since the imperatives that apply to prosecutors don't apply to other classes of "government lawyers." An unethical monster like Philip Cline is a moral threat whether or not he leaves government service. No client should trust such a creature; none should have to risk association with him.

Prosecutorial solidarity is the only tenable explanation I find for the State Bar's avid refusal to prosecute prosecutors. The State Bar, after all, effectively is composed of prosecutors, and the boundary between prosecutors in general criminal practice and State Bar "trial counsel" is porous, the State Bar the refuge of the most incompetent of the lot, not necessarily the most vile. The prosecutors in the State Bar have a stake in not seeing other prosecutors prosecuted because, in general, prosecutors often engage in misconduct, particularly State Bar prosecutors. While the State Bar has no shortage of hypocrisy, it knows its self-interest. Once prosecution of prosecutors becomes common, why wouldn't a public outcry demand prosecution of "trial counsel"? By all indications, serious misconduct by these bar prosecutors is a common occurrence, even the norm. Every prosecutor has an interest in such misconduct getting a free pass.

The evidence of State Bar misconduct is rife throughout its cases, but the most rigorously proven instance happens to have occurred in my State Bar case, where "deputy trial counsel" Melanie J. Lawrence actually destroyed documents to obtain dismissal of my petition for review. Precisely because the evidence is circumstantial, hence not dependent on testimony, the proof of her misconduct is airtight. Readers can verify this tolerance for misconduct by bar counsel all the way from the nefarious Judge Honn to an indifferent California Supreme Court. Lawrence and the attorneys representing the state bar consistently refused to address the charges of misconduct; with proof so clear, they determined to stonewall. While my briefs pounded away on the subject, the State Bar's briefs ignored my allegations. They needed to craft no arguments; they simply pretended my claims were absent. Subsequently, no investigation was opened, despite the proof I briefed.

While Philip Cline is district attorney of Tulare County, Melanie J. Lawrence continues in employment by the State Bar. The State Bar doesn't prosecute prosecutors for misconduct because, out of self-interest and empathy, it favors such misconduct.

Thursday, November 18, 2010

84th Installment. The Inherent Untruthfulness of CYA Letters

A CYA (cover your ass) letter is one whose purpose is to rebut client's blame in advance when acknowledging the motive would defeat the purpose. (See 75th Installment, The Torture Memos & the Tortured Legal Ethics Justifying "CYA Letters," for elaboration.) Ethicists mostly ignore CYA letters, an ensconced form of professional untruthfulness.

After I commented that professional protectiveness toward CYA letters stymied the prosecution of John Yoo, Monroe Freedman, who posts at the Legal Ethics Forum, tried to open a discussion of CYA letters. Here's the example he posted:
In 1971, the Nixon administration arrested 13,000 people, virtually all of whom had come to DC to peacefully protest the Vietnam War. I was in charge of ACLU’s litigation effort on their behalf.
One group of clients consisted of 2400 people who had been arrested for disorderly conduct, but with no probably [sic] cause and with no record made by the arresting officers of the circumstances of the arrests. (In fact, one of the group was a White House secretary who had been arrested while walking to work.) The arrestees were required to post collateral and given court dates for trials. Many did not appear because they had come from distant places. In those cases, the government moved the court to forfeit their collateral and enter a conviction. Whenever a defendant did appear, however, he or she was met at the courtroom door by a prosecutor who gave the defendant a green card indicating that the case had been dismissed and informing them how to get their collateral refunded.
Monroe describes his CYA letter:
Thereafter, with reference to the MayDay “arrests,” some members of the class asked me whether they had to answer yes if asked on job, graduate school, or bar applications whether they had ever been arrested. I told them that, in my opinion, they could properly answer no. (For those too young to recall, there were people who would be strongly hostile to anti-war demonstrators, peaceable or not; think Swift Boat attacks on John Kerry.) However, I cautioned them that a letter to that effect from me would not be an immunity bath, although it would at least provide evidence of their good faith if they were ever challenged on the issue. I also pointed out that a lie on an application might well be considered a more serious matter than the fact of an arrest, and that someone else might disagree with me regarding whether they had lied. In those cases in which people requested the letter (all such cases, as I recall), I wrote it for them. However, I did not include my cautions in the letters I simply stated the facts and my opinion. [Emphasis added.]
Momentarily disoriented by my substantive agreement with Monroe's cause—I'm less sympathetic to some of his other causes—I seriously erred in my comment (while the other commenters missed the point). An unfortunate error of mine, as Monroe's letter contains the fundamental CYA disclaimer, the basic formula rendering CYA letters a dishonest practice. My comment is useful here because it illustrates the fallacy committed by attorneys who think CYA letters benign. Mistakenly exculpating Monroe's letter, I posted:
The equivocal caveat in your direct advice amounts to advice about using the advice; placing this "meta-advice" in the letter leads a third-party reader to read the qualification into the advice itself.
My comment elevated form over substance. The language of the disclaimer is part of the advice: it's information about the likelihood the advice will prove accurate. It is no less part of the advice than a direct statement expressing that likelihood. The counter-argument that the disclaimer is boilerplate is unavailing: it compounds untruthfulness, as boilerplate inaccurately expresses the attorney's opinion in the particular case. When attorneys gratuitously denigrate their own degree of confidence through boilerplate disclaimers, they are no less untruthful than when they exaggerate their certainty. Likelihood of accuracy is of the essence; John Yoo's misconduct was gross over-confidence in his theory.

CYA letters are so ingrained in American legal practice that even I overlooked the unethical character of Monroe's letter. The deep seated untruthfulness of a professional practice is matter for deep concern. It makes lawyers oblivious to other forms of dishonesty, lowers professionals' commitment to truthfulness, and creates an accurate public impression of dishonesty. CYA letters also constitute bought exoneration, where a client's attorney administers "justice"—for a fee.

Friday, October 22, 2010

Interlude 20. On the Morals of Ethicists

Fourth in Mark Brennan Series

At the Legal Profession Blog, legal ethicist Mike Frisch
removed his post, rather than admit error or stand his ground. Frisch posted the usual state-bar character assassination, where the reporter recaps the worst allegations of the bar court, while omitting most of respondent’s contentions and denials and caricaturing the others. Two commenters replied. The anonymous first commenter posted insightfully on September 24:
I find this case troubling. As I read the opinion, I just get the feeling that there is much more to this case than is reported. It appears to me that the judge and the attorney were both engaged in a battle. In other words, it was not just the attorney that had lost control but also the judge.
I posted the second comment, noting the report’s lateness and referring readers to my blog posts at [scroll down]. Following these postings, Frisch modified his position without admitting his error or analyzing his biased attitudes and impressionistic methods. He wrote:
There has been a fair amount of commentary … on this matter, much of it favorable or at least sympathetic to the disciplined attorney. Carolyn Elefant has suggested that the sanctions here were unduly harsh or motivated by animus generated by the attorney's success in the underlying representation. Also, it is noteworthy that the case was decided last year but appeared in the September 2010 listed decisions of the Colorado disciplinary system.

While Frisch finally pays attention to the Colorado dates, it is also “noteworthy” that he doesn’t date his “Update.” When you change your position or correct an error in a commented blog post, the ethical consensus among bloggers dictates that you note the date of the comment, but Frisch’s lack of candor goes beyond this failing. Frisch posted the “Update” above the old September 24 date line, implying that he updated his entry on the same date as it was written, but the earliest he could have changed it was October 4, 2010 (from the dating of the web cache at Frisch concealed his falsehood’s duration. Like a shady state-bar respondent, he resorts to deceit short of outright lies, in the fatuous hope no one will notice.

I e-mailed Mark E. Brennan, the subject, about the defamatory posting. The Colorado web site Know Your Courts reported that when Brennan then tried to discuss the matter with Frisch, Frisch almost immediately offered to remove the posting. Know Your Courts reports that Frisch told Brennan, “It is just not that important to me.”

Obviously, it wasn’t: the post came down without further comment. It’s not the only instance of dishonest blogging or even the worst for the Legal Profession Blog. In the 4th Installment, “The State Bar and It Academic Allies Undermine Legal Sophistication,” I describe how another blogger associated with that blog suppressed my critical comments on his remarkably authoritarian advocacy of imposing a full-disclosure requirement of all anonymous posting to the Internet while bar applicants attend law school. Not only was my comment suppressed, but Lipshaw suppressed the other commenter’s already published response, quoted in that 4th Installment, together with Lipshaw’s self-damning reply, also quoted in that kanBARoo court installment. (In fairness, the other major academic state-bar-establishment Internet site, the Legal Ethics Forum, hasn’t resorted to dishonest blogging practices.)

Dedicated bloggers and all devotees of basic truthfulness revile this practice of removing and changing commented blog entries, practices where the dishonest blogger hides the truth and reneges on his implied agreement with commenters, who don’t reckon that if they win an argument or expose a deceit, the losing blog owner will destroy the evidence. For those unfamiliar with the norms, consider this controversy among theoretical-physicist bloggers, who scorn another physicist because (among other reasons) he blogs dishonestly:

At [Luboš Motl’s] blog, The Reference Frame, [Luboš Motl] often deletes comments. … In addition to that, Luboš Motl has the habit of editing posts after publishing which, taken together with deleting comments, makes others look stupid or out of place while supporting him. (Backreaction.)

In another physics blog, a commenter drives home the significance of Motl’s blogging practices:

If this claim about Motl is true, I think the ‘freakish little sociopath’ label is wholly justified.” (3 Quarks Daily.)

The point of the digression is to clarify, for those unfamiliar with blogging norms, the practices followed by bloggers dedicated to truth-based ideals. Not only must the state-bar establishment recruit ethical invalids, as only they will enthusiastically support the trashing of ethics in ethics’ name, but the state-bar enforcement culture and those academics closest to it (Frisch is Ethics Counsel at Georgetown University Law Center, rather than a professor) actively undermine genuine ethical commitment by its practitioners and their academic accomplices. These cowardly libelers are accustomed to hide behind the litigation privilege, which they remorselessly wield against the reputations of state-bar respondents. Hardly surprising that they may sometimes forget, when quoting the state-bar tribunals as if the findings are fact rather than allegation, that they are liable for damaging falsehoods. Without any moral constraints to oppose to expediency prosecuting a vilified respondent, they can lose track of prudential advice: they forget that the decision of a state-bar court doesn’t collaterally estop an action against a private defamer who parrots the false findings as fact.

Saturday, September 25, 2010

83rd Installment. Fine Finally Free: What's the Real Lesson about California Judges?

The Los Angeles Men’s Central Jail has released Richard Fine, held in coercive confinement for 18 months for disobeying a court order to disclose his financial records. Fine’s intransigence was a victory only in a personal sense. Although speculation about Judge Yaffe’s motives in ordering the release is rife in the Fine camp, Yaffe ordered Fine’s release because he's retiring; he isn’t retiring because of the Fine situation.

Judge Yaffe’s stage-managed retirement illustrates why you don’t have to invent judicial conspiracies to apprehend judges’ ethical hypocrisy, despite their being frequent impugners of lawyers’ ethical integrity. Yaffe is mounting a runaround of the California constitutional provisions that democratically check the governor’s power to appoint judges by subjecting them to retention elections. (Cal. Const., Article VI, section (c).) He will exploit the loophole exempting interim appointments from this requirement. Had Yaffe resigned a month later at the end of his term, a retention election would check the governor in filling the vacancy.

Judge Yaffe is an egregious judicial officer, but we would unjustly condemn him for gratuitously resigning a public trust (remember, he's a superior-court judge, not Sarah Palin). We would treat him unfairly by singling him out even for circumventing a constitutionally authorized legislative check on executive power. He isn’t exceptional in staging this travesty, for it’s the norm; nor is this flaunting of partisanship likely to change any appointment—making the judges’ crass sell-out to petty partisanship more degrading.

Since Yaffe wants to retire because he's old, and opportunistic early resignation is customary among our half-civilized judges, lawyers will immediately understand why Yaffe released Fine. Yaffe definitely became aware of the portending scrutiny by a new judge, since Fine had just moved for re-assignment based on Yaffe's impending retirement. Informal norms press judges to wrap up business before retiring, to avoid making work for other judges. Fine’s motions and appeals could harm Yaffe’s reputation, under a judge who’s irritated with the chore. Enjoying less personal influence after he retires, Yaffe should even fear reversal.

Some of Fine’s supporters, including the always truth-disrespecting Leslie Dutton, base their conspiracy theory on a claim found in Fine's briefs, asserting a U.S. Constitutional limit of five-days confinement for contempt. Dutton even invented an acronym for the hearing that supposedly should have enforced this nonexistent limitation: “FARR hearing”: her complete confusion about a case where the petitioner bore a similar surname. (See Farr v. Pitchess (1973) 409 U.S. 1243.) This falsehood disserved Fine by implying that coercive confinement is an illegal, aberrant practice victimizing Fine alone, whereas it's really an ensconced threat to lawyers and the public. As far as any pressures promoting Fine’s release, the contents of Judge Yaffe’s order support the import of the length of Fine's confinement, the only issue where Yaffe's order revealed vulnerability.

Fine and his supporters, wrapped up in these confusions or prevarications, led with their untenable fraud-by-the-courts theory. This Fine–Judicial Watch theory doesn’t itself scare members of the state-bar establishment, but the course of events does nonplus them. The California Supreme Court’s motion to dismiss Fine's civil lawsuit denigrates Fine's legal theory, through the office of that court’s attorneys, Benton, Orr, Duval & Buckingham:
Although Fine trumpets the various actions that he has filed against judicial officers as evidence of his successful prosecution of alleged judicial corruption, he has never prevailed in any attempt to disqualify a judicial officer (state or federal) based solely on the receipt of “local judicial benefits.” [Citations.] Moreover, Fine’s reliance on his strained interpretation of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. The Sturgeon decision specifically found that the payment of local judicial benefits was neither a waste of taxpayer money nor a basis to seek recusal of a judicial officer receiving such benefits. [Citation.] (“Defendant, The Supreme Court of California's Notice of Motion and Motion to Dismiss Complaint,” p. 3, fn.2 [].)
This language shows both the courts' distance from Fine’s interpretation of Sturgeon v. Los Angeles County and, despite the legal unformidability of Fine’s “strained” theory, their wish to forgo stock taking. As Savannah S. Winslow points out in the pro-Fine blog Right Trumps Might, Sturgeon made no specific findings on recusal! The Legislature’s failed attempt to immunize Councilmen and judges retroactively for providing and accepting the unlawful benefits points to the same avoidance. While grant of immunity doesn't prove grantees' criminal guilt or civil liability (contrary to Fine and supporters), it demonstrates an appearance of impropriety. The Legislature immunized the parties to avoid litigation, not necessarily liability, but the Legislators expected citizens to litigate only because the benefits appeared improper.

Contrary to the tenor of the California Supreme Court’s attorneys’ comment, Fine struck effectively, if blindly, against the California judiciary's
moral authority and, for some correct reasons, damaged the Los Angeles judiciary’s reputation. While the judges broke no criminal law and committed no tort, they created an appearance of impropriety by accepting a contribution they knew was probably illegal (what with their being judges). Out of some 400 judges in Los Angeles County, none refused the benefits or protested to bring the remuneration scheme within the state’s administrative-law provisions. During some twenty years of receiving these legally dubious benefits, the judges allowed the practice to continue.

No judge, not one, brought analytic acumen or ethical sensitivity to bear on this irregular practice, where the judges personally benefited. Even as applied to judges, a principled ethical code would sanction only actual impropriety, not its mere appearance, but most jurisdictions’ codes of legal ethics and all codes of judicial conduct impose a duty to avoid the appearance of impropriety, a norm most judges accept. kanBARoo court alone pinpoints the moral contradiction of hundreds of judges who lived comfortably with impropriety’s appearance, while they endorsed the no-appearance-of-impropriety standard; the judges know the public recognizes their hypocrisy.

Wednesday, September 15, 2010

82nd Installment. The Scope of Legal Ethics

The profession must rethink legal ethics' scope: which rules define moral character, which rules merely regulate conduct, and what significance differentiates the two. The vast scope of rules purporting to be ethical itself oppresses lawyers and the public when it moralizes administrative duties, bestowing on their enforcers morality's undeserved imprimatur.

Try to solve the following hypothetical by William Simon. (See W.H. Simon (1999) Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433.) Although not Simon's intent, the hypothetical shows how today's versions of legal ethics disparage some desirable but amoral administrative rules, while over-enforcing, as if rules of ethics, other amoral administrative rules. Here's the hypothetical, a true story:

Simon discovers that Government agency fakes supevisor's absence to excuse unjust delay of client's food stamps. He impersonates supervisor's boss, bringing "absent" supervisor to the phone. Simon reveals own identity and confronts supervisor, who offers expected excuses and immediately releases client's food stamps.
Simon violated the governing Model Rules of Professional Conduct, which prohibit all lying to third parties or opponents, and in class discussion, most of his students criticized his conduct as unethical. For his part, Simon rejects "quasi-categorical ethics" in favor of a contextualized analysis, where the virtues of such "moral activism" shine through. I can't fault Simon's specific conduct: his students' arguments, too formalistic, don't persuade. Simon prevaricated but harmed no one, but focusing the discussion on an indigent client's oppression by a powerful and indifferent institution distracts the reader from considering that our adversarial system enforces the law of lawyering reciprocally: consider if a government lawyer deceived the client to discover misstatements on the client's application. The public reasonably demands a certain respect for the dignity of opponent and third parties by lawyers, whom the state grants a monopoly in their trade.

The rule should have been enforced against Simon, but the main question is how, as Simon didn't act unethically in breaking the rule: in context, he even acted admirably. To discipline him professionally would unjustly threaten his right to practice, when his conduct, not morally turpitudinous, betrayed no lack of fitness for legal practice, instead showing ingenuity and zeal. While Simon's students and the bar-establishment responsible for their thinking would accuse Simon of unethical conduct, Simon favors reforming the rules to permit the conduct, but both mistakenly accept the ethical (that is, moral) character of any good rule specifically governing law practice. To the contrary, violating a rule benefiting the profession or the public does not necessarily mark the violator unsuited for practicing law. Different ethical theories imply different assessments of Simon's conduct, but disloyalty to a client, lying to the client, lying about the facts or law in court, reveal a flawed character because these acts transgress core moral principles pertaining to an attorney's agency.

A jurisdiction's "law of lawyering" is often split between a code of ethics and an ordinary legal code, in California, the Business and Professions Code, but the section of the law's corpus in which a provision falls barely affects its content or the consequences of violating it. The law should recognize a material distinction between administrative rules and ethical rules. Rules like the general prohibition against lying in the course of representation belong in the legal rather than the ethical code. Rules that create an orderly profession but don't define the moral core of the law of lawyering should be enforced by civil fines and penalties rather than professional discipline, to deter undesirable conduct without supplying a disciplinary yardstick. Including rules besides narrowly defined ethics in an ethical code disparages the real ethical commandments, centered on loyalty to client and specific forms of truth telling, by equating them with administrative requirements. Most importantly, using administrative rules as if they were ethical rules subjects excellent lawyers of sound character to professional discipline.

A rule's amoral, administrative character shouldn't preclude its enforcement because of its not being a proper rule of ethics, but genuinely ethical rules aren't purely systemic, and only rules of ethics, those rules whose violation directly and incontrovertibly reflects adversely on moral character, should form part of the recognized professional ethics.

Saturday, July 31, 2010

81st Installment. Loyalty to Client versus Candor with Court: Client Perjury and Related Bugbears

Officer-of-the-court jurisprudence—ethics that take seriously some lawyers’ self-important belief that they’re “officers of the court”—has been the most divisive issue among legal ethicists since the ABA’s 1908 promulgation of the Cannons of Professional Ethics. Where loyalty to client is pitted directly against duty to court, consensus dissolves, as it does concerning managing client perjury: one jurisdiction mandates practices another rejects as unethical. For decades the rule that a lawyer commits misconduct when he allows his client to commit perjury has been the most heated topic debated in law-school "professional responsibility" classes, but debate hasn't produced consensus. For adherents of officer-of-the-court jurisprudence, the issues are candor with the court and facilitation of crime. For adversarial lawyers, anointing lawyers agents of the court—duty bound to screen clients for truthfulness before the jury takes its turn—smacks of the Star Chamber, where lawyers were empowered to prejudge their clients' credibility and burdened with responsibility for their clients' lies. (A. Sterling, Truth, Justice, and the American Way: The Case against the Client Perjury Rule (1994) 47 Vand. L. Rev. 339.)

The threatening ascendancy of officer-of-the-court jurisprudence erodes lawyers’ loyalty to clients to where both bar courts and respondents don’t even notice client-centered ethical issues, in the following example, confidentiality. Consider the following as if it were a hypothetical on a Professional Responsibility exam; we’ll call it hypothetical because incidental facts have been changed to avoid identifying respondent attorney:

Attorney, having exhausted the allowed extensions of time, is late in filing an appellate brief. Attorney deceptively backdates the document, which the clerk mistakenly files. Attorney denies the backdating when opposing counsel challenges him, but before the court rules, attorney admits the deception. The court strikes attorney’s brief, causing attorney’s client to lose the appeal. After opposing counsel files a professional-discipline complaint, what culpability should the state bar find?
Neither the bar court nor the respondent recognized the confidentiality issue: the state bar treated the breach of client confidentiality as mitigating the deception's culpability, respondent as exonerating that offense's commission. Any second-year student who doesn’t find an issue of breach of client confidentiality in the hypothetical should fail the exam. But lawyers? However ethically serious they consider petty deception of the judiciary or however unseemly they consider baseless intransigence, lawyers should be unanimous on the case’s central ethical issue: should attorney unmask his own deceit? The answer should be a resounding No! Every lawyer must understand the most basic ethical premise of law practice: lawyers don’t fink on clients; despite many jurisdictions’ requiring it, ethical lawyers refuse even to report clients intending perjury. (A. Sterling, supra at p. 423, fn. 311 [anonymous survey of the District of Columbia bar revealed that 90% of those surveyed would call the perjurious criminal defendant to the witness stand and conduct the defense as if the client had testified].) Every lawyer should understand that legal representation is an agency relationship, where his client’s case may suffer if the court discovers attorney’s transgressions. (See J.A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court" (2000) 48 Buff. L. Rev. 349 [centrality of agency law in governing American lawyers since the Revolution].) Attorney sacrificed his client’s interests for personal moral purity—or for expected and received mitigating consequences.

Attorney’s knowledge that his filing was untimely is privileged because attorney acquired the information in the course of representation, but officer-of-the-court jurisprudence hugely distorted both parties’ ethical understanding. The state bar and respondent assumed the existence of duties to the court overshadowing client loyalty. They differed only in the state bar’s regarding the retraction as mitigating attorney’s lack of candor, while attorney regarded it as complete excuse—although attorney rectified his acts of deception by committing a worse ethical transgression, sounding in breach of confidentiality. Cleansing an attorney’s soul of guilt at a client’s expense sacrifices the client’s interests to the attorney’s no less than betraying a client for money. Between deceiving the court and undermining his client by disclosure, the uncharged disclosure of the filing date’s falsification is the severer transgression.

All fundamental legal rights depend on attorneys' performing their duty of loyalty to clients. The right to be heard withers without attorneys who loyally represent their clients, and the tyranny of lawyers’ morality oppresses more than does ordinary corruption: from Watergate to the torture memos, moral ideology rather than personal profit motivates the greatest lawyerly crimes. While absence of due process in the bar courts rebuts calls for harsher penalties, discipline is lax for lawyers who excuse their disloyalty because they subject clients to conscientious dictates, not greedy appetites. Contrast attorney’s actual suspension for less than six months to the two-year suspension a state-bar court imposed on a lawyer lacking moralistic self-justification for deceiving a federal court about filing dates.

Thursday, July 15, 2010

Interlude 19. California Supreme Court denies Philip E. Kay’s petition to review 3-year mandatory suspension

As kanBARoo court reluctantly predicted, the California Supreme Court ignored the substance of Philip E. Kay's petition for writ of review, issuing its standard boilerplate denial. Kay must now decide whether to move for rehearing. He should file a radically succinct motion for rehearing, containing no more than fifteen pages—ten is better—focusing exclusively on the most compelling and certain issues. Unquestionably, the Supreme Court will deny it, but Kay will have made the clearest possible record.

Monday, July 12, 2010

Interlude 18. Judicial Narcissism versus Justice: the Melvin H. Hoffman Matter

During a phone conference, family-law litigator Melvin Hoffman called a judge a "narcissistic, maniacal, mental case." The judge reported Hoffman to the Illinois state bar, resulting in a six-month suspension, and the judge drew ridicule, even from within the state-bar establishment (see Monroe Freedman's comment). The Illinois state bar's conduct is unsavory, not only because of the infraction's pettiness but also because of prosecution in bad faith, reviving long-abandoned charges, one a decade old. From review of the ABA discussion board, one conclusion is certain: lawyers and the public—following numerous exposures—will no longer presume they should respect undeserving judges; but the legal and ethical underpinning of a critical attitude toward judges lags.

Many commenters (e.g., Comments #39 and #81) applauded Hoffman's ethics, but state-bar ideology isn't quite dead. One commenter (#10) came close to admitting that irrational, automatic public respect for courts is what's at stake, but the most repugnant argument for mandatory respect was the hypocritical claim that Hoffman's conduct was prejudicial to his client. These critics' (#33, #21, #58, and #92) readiness to second-guess Hoffman shows this is not good-faith criticism. Even the most sophisticated of these comments (#38), which pointed out that confronting a narcissist with his diagnosis predictably causes an outburst of narcissistic rage, refused to acknowledge that the injustice might have gone far enough that the incident's publicity was the only remedy or that elicitation of the judge's expected narcissistic rage was the only tactic exposing the judge as a megalomanic narcissist. (See "Installment 22: Can you tell victory from defeat?") To demand Hoffman explain his tactical reasoning ignores his work-product privilege. This was no episode of "snapping," Hoffman having written the judge to reiterate and elaborate his insights.

The lack of legal sophistication in the comments shouldn't surprise given the low level of legal coherence cultivated by a nationwide state-bar establishment that has eliminated real legal contention in ethics. The legal and ethical naivete underscores the importance of looking to other state-bar cases to build a cumulative case against the state-bar courts, and this means looking across jurisdictional lines, since the state-bar courts are similar across the land. Confusion dominated the discussion of courtroom free-speech rights. Hoffman's critics relied on the half-truth that attorneys in court lack free-speech rights, but Hoffman's supporters also erred, if in a less pernicious fashion, by simplistically affirming that ordinary free speech rules favoring the speaker applied. When an attorney represents a party, restrictions on the attorney's speech aren't measured by the attorney's free speech rights but by his client's equally exacting first-amendment right to petition. While the Hoffman supporters were formally wrong in claiming Hoffman's free-speech rights (#21), they recognized a first-amendment issue. Any restriction on an attorney's right to speak relevant truth defeats his client's right to petition. The burden of proving falsity falls on the judge or bar prosecutor, whereas the Illinois bar court assumed Hoffman culpable unless he proved his accusation.

The conspicuous weakness in Hoffman's supporters was their general failure to distinguish this act of state-bar oppression from ordinary court-imposed sanctions or contempt findings. Hoffman's critics understood a distinction in the opposite sense that duty requires attorneys to demonstrate compliance with higher standards than laymen, but that's a miserable debater's point: "respect for the court," while theoretically a higher standard, is vaguer, hence harder to prove, than the standards for contempt or other sanctions. For a judge to report a lawyer to the bar courts without citing him for contempt or issuing any sanction is so craven it immediately inculpates the judge in some foul play. The judge bypassed the rigorous criteria for contempt and monetary sanctions in the courts of record by avoiding those courts and forum shopping a softer adjudicator.

Any state-bar discipline for courtroom behavior imposes a penalty far more onerous than the courts, as even a public reprimand often ends an attorney's career. The difference in punishment between lawyer and nonlawyer for courtroom behavior is so wide, it affronts the lawyer's and his client's equal protection of the law.

Sunday, June 20, 2010

80th Installment. What happened to lawyers’ amoral ethical role?

The "standard" amoral account of lawyer's ethics was expressed most precisely and defended most rigorously in Professor Stephen L. Pepper's 1986 paper "The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities" and in Professor Pepper's rejoinder to moralist David Luban's comments. Professor Pepper so severely savaged Luban's moralism that Luban attached a caveat—stating that some of his positions have since changed—to his permission to publish the comments. Luban's drubbing by Professor Pepper consolidated "neutral partisanship" as the profession's formal ethical ideal, but Luban's moralistic view has nevertheless come to color the state bars' practical interpretation of legal ethics. While Professor Pepper didn't predict the swing toward moralism, his analysis provides a tool for understanding it.

Although moralism carries numerous grand implications for law, the 1986 debate focused on two issues: client choice and legal tactics. The issue of client choice is: Should a lawyer apply ordinary morality to decide whether to take a case, or should the lawyer suspend ordinary moral judgment when deciding? The issue of legal tactics is: Should a lawyer apply ordinary morality to determine what legal tactics to use, or should the lawyer employ the most effective tactics that his client is willing to pursue? Professor Pepper opposed applying ordinary morality to both decisions, and David Luban favored it for both.
Pepper vs. Luban
Professor Pepper argued that the formal purpose of the lawyer role conflicts with lawyers' informally constituting themselves as a moral screen for any citizen's legal projects. Professor Pepper's main argument was based on the democratic necessity of citizens' unfettered access to the law, independent of lawyers' moral scrutiny, but his most-interesting and most-ignored argument derived from a view of public policy as contract: the ethical codes—3/4 devoted to guild protection and 1/4 to attorney duties to clients—demonstrate a bargain between society and the profession. What is the profession's quid pro quo for the anticompetitive protection society affords lawyers? The ethical codes evince that the public's benefit of the bargain is the lawyer's duty to subordinate any conflicting personal interests to client- (or potential-client) purposes related to the representation. The lawyer's personal interest in avoiding dirty-hands involvement in unsavory cases or tactics is lawyer-centered, an unethical consideration, which shouldn't affect the availability of legal representation and other access to the law, a public good. (See also Spaulding, The Rule of Law in Action: A Defense of Adversary System Values (2008) 93 Cornell L. Rev 1377, 1391 [antidemocratic implications of substituting lawyer's conscience for the client's].)

Unsurprisingly, the concept of an amoral lawyer role repulsed David Luban, since Luban isn't law trained: his criticisms of the lawyer's amoral role were remarkably vulgar—laymanlike in the worst sense. Luban rejected role-specific morality on principle; his argument, repetition of axiom: professional ethics must be transparent to ordinary morality. Accepting a client and deciding on legal tactics are, for Luban, personal moral decisions. Luban's naive arguments harped on moralistic platitudes, such as, "You must remember that some things autonomously done are not morally right." Luban missed the point that to have a system making lawyers broadly available to the public, professionals must evaluate their acts using role-specific ethical criteria, and he exposed the shallowness of his arguments when he disingenuously maintained that access to lawyers isn't important for autonomy because the citizens seldom have recourse to the law.
Role Amoralism vs. Moral Activism Today
The formal ethical rules continue to espouse neutral partisanship, albeit in undertones; but the regimes the state bars enforce and the judiciary's attitudes have gutted the maxims of neutral partisanship. The treatment of vexatious litigants by judges—lawyers are afraid to handle vexatious-litigants' cases, regardless of case merit—shows how far the profession has swung in its ideals from amorality in client selection. The state bars' prosecution of lawyers for decorum violations provides an indirect glance at the decayed duty to use any advantageous tactic.

From Professor Pepper's under-recognized insight into the terms of pact between public and profession, we can infer why the profession has proceeded in the opposite direction after Professor Pepper demonstrated the correctness of the amoral neutral-partisanship position. Society's offerings to the lawyer guild have declined, peaking when Professor Pepper wrote his essay. The status of lawyers and consequently their benefit from guild privileges had risen until then, but the trend reversed with lawyer glut, then outsourcing, and finally businesses' recessionary drive for profits. Since lawyers can obtain fewer privileges from guild membership, they are willing to cede less to the public. The license to influence the choice or course of litigation according to a lawyer's moral views is a privilege lawyers are unwilling to forgo in return for depreciated rights. Apart from the instrumental significance of the change, it marks the erosion of a symbolic bulwark against moralizing the profession. (See Wendel, Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection (2006) [even limited moralistic opt-out rights for lawyers are inconsistent with concepts of client legal entitlement].)

Professor Pepper's analysis permits further inference. In response to Luban's downplaying ethical guidelines, Professor Pepper pointed out that the absence of guidelines leads to the assumption that inarticulate knowledge is the root of discipline matters. Inarticulate knowledge—primal moralism—reduces legal ethics to a supposed common denominator in ordinary morality, implying that legal ethics is mainly about condemning unscrupulousness. Hypocritical guidelines recreate the anomie of no standards, reinforcing Luban-style moral activism's appeal.

Monday, June 7, 2010

79th Installment. Chief Trial Counsel's Office Admits Grave Lapses in Bar Prosecutors' Legal Ethics

9th in Philip E. Kay series
In its brief opposing Kay's petition for writ of review, the California State Bar admitted that, in prosecuting cases initiated by judges, the Bar habitually commits acts of moral turpitude. These admissions, made only to avoid more damaging inferences by the legal community, establish as never before that the State Bar violates respondents' due-process rights and prosecutes at cross-purposes with its statutory public-protection role.

1. Concealed ex-parte communication.
The Konig case, an employment suit by a State Bar prosecutor, laid bare the State Bar's motives. The remarkable story is that the State Bar tried to attain two illicit objectives with one turpitudinous act by concealing from Kay that Judge Anello was the complaining witness. This was useful for two reasons. First, the State Bar secured unlimited time to prepare its frame-up. Second, the State Bar advanced its project of rehabilitating Judge Anello's reputation by concealing the judge's role in that project's initiation.
Konig: "If Judge Anello is not entitled to know why the NDC hasn't been filed and why he hasn't been able to reclaim his reputation publicly, then I think someone else needs to explain that to him." (Memo from Konig to superiors (August 4, 2003).)
Recouping a judge's reputation isn't an authorized purpose for State Bar prosecutions. It's a corrupt purpose: we don't even know the State Bar's reward for pleasing judges, and it's a little surprising that nobody in the legal-ethics world wants to find out. The evidence unearthed in the Konig case, records of conversations between Konig and his controllers, show then-prosecutor Konig in discussions with Judge Anello behind Kay's back, as neither Judge Anello nor the State Bar informed Kay, as the rules require, when Anello complained against Kay.

Konig's superiors were concerned that Konig was endangering Anello's confidentiality, and Konig freely expressed his concern with pleasing Anello.
Konig: "The question of who initiated this investigation has now been raised by one of the two individuals. As previously indicated, to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Letter from Konig to Judge Anello (January 7, 2003).)
Konig: "I was more interested in having [Kay] admit responsibility as that would serve as an apology to Judge Anello and that I would consider entirely stayed suspension if that occurred." (Memo from Konig (August 4, 2003).
Why would it damage the State Bar's case if Kay knew the State Bar was discussing a complaint against him? The reason is that the State Bar was illegally circumventing the five-year statute of limitations.

This is all amazing enough, but it isn't new. The new information, supplied by the State Bar in its opposition to Kay's petition for writ of review is that the Office of Chief Trial Counsel routinely violates its Rules of Procedure by not counting judges as "Complainants." This practice denies respondents the due limitations period.
It is the practice of the State Bar to treat all complaints initiated by Judges as SBI [State Bar Initiated] Complaints. (State Bar Opposition at p. 20.)
The California State Bar Rules of Procedure rule 2.28 defines "Complainants": "'Complainant' is a person whose communication generates an inquiry or a complaint.'" Rules of Procedure rule 2403(d) establishes that investigations initiated by a judge's allegations are Complainant-Initiated, not State Bar Initiated. The rule giving the statute of limitations is Rule 51(a): "A disciplinary proceeding based solely on a complainant's allegation of a violation of the State Bar act or Rules of Professional Conduct shall be initiated within five years from the date of the alleged violation."

By plain meaning, the rule requires that the State Bar treat complaints by judges as complainant generated, but the State Bar's misconduct is worse than it looks. The State Bar knows a judge is a Complainant under the Rules of Procedure; otherwise, why did Konig's supervisors say his public identification would jeopardize the case? The State Bar also knows that its deviant rule interpretations confuse respondents, but it takes no steps to clarify the meaning: with this miscue and others, the State Bar exploits respondents' confusion, another example where the State Bar cultivates ambiguous rules as a weapon against respondents being the ambiguous schedule for petitions for writ of review. Most importantly, the State Bar isn't even consistent in treating judges' complaints as SBI, as the State Bar's letter to Judge Anello offers the judge his choice in the matter, a practice even harder to square with the express language of the Rules of Procedure.

Konig: "to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two [Kay and cocounsel Dalton] will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Konig Letter to Judge Anello (January 7, 2003).)
2. Misrepresentation of Kay's unstained career.
Another claim the State Bar knows false is that Kay "has made a career out of histrionics designed to control and disrupt whatever courtroom he is in and unnecessarily prolong the process." (State Bar's Opposition at p. 31.) The charges will survive despite their implausibility only because a review court doesn't weigh evidence, but the State Bar has now put Kay's career at issue. The libelous outburst allows Kay to argue that a lawyer charged with repeated violation of court rules and decorum would have been found in contempt or at least sanctioned for such behavior. Kay's unblemished record refutes the State Bar's general case theory, which the quoted outburst summarizes.

The outburst compels readers and the reviewing court to ask, why did the judges who brought charges before the State Bar fail to sanction Kay at trial? Their excuses are lame. We hear Judge Weber supposedly avoided declaring a mistrial, despite scolding Kay for alleged misconduct, because the judge wasn't certain Kay prejudiced the jury.

When Judge Weber found that it was a close call whether defendants were denied a fair trial, she was not holding that it was a close call whether Petitioner committed misconduct, but whether his misconduct fundamentally prejudiced the other party's right to a fair trial. [Citation.] In fact, as she testified she found his conduct before her "appalling." (State Bar Opposition to Kay's Petition for Writ of Review at p. 21.)
Completely lacking in credibility (and irrelevant—who cares if Judge Weber was "appalled"). Repeated misconduct in various courtrooms always creating "close calls" —but never more—flies in the face of the laws of probability. Judge Anello even testified that Kay announced he wouldn't obey the judge's so-called orders. This announcement suffices to find contempt unless the commands weren't orders; but judicial one-upmanship, as any trial lawyer knows, is all too common when incompetent, obsessive-compulsive judges micromanage trials. The futile warnings of such judges don't constitute orders, but the State Bar's main "evidence" consisted of quoting these judges remonstrating with Kay and applying labels like "appalling." While factual implausibility isn't a review criterion, the eagerness of the State Bar to pursue a case so implausible, its smug rejection of Kay's concern for plausibility just because the State Bar can get away with it, deserves the widest condemnation from lawyers and ethicists.

3. Absurd charges alleging an ancient citation error.
The State Bar's readiness to pursue absurd charges based on technicalities is also demonstrated by the ridiculous charge concerning a case-law citation, yes, a single citation. The State Bar found that Kay willfully misled the court by offering an inapposite citation, when the document containing the citation was a) written by cocounsel; b) presented more than five years ago.

What does the State Bar hope to gain with a charge so absurd and so late: discipline for an alleged miscite five years ago, not even committed by Kay? The question can be answered precisely. To maintain its credibility, the State Bar Court labors to preserve a facade of substantial review. Had entry of default not precluded matter's hearing by the Review Department, review would eliminate the miscitation charge. The State Bar's routine practice includes charges it knows are absurd; the State Bar justifies this practice by what its prosecutors call "adversarial procedure." Including frivolous charges enables the State Bar Court's Review Department to appear to perform review. Including frivolous charges also often allows the State Bar Court to uphold the charges, despite the absence of proof, when a respondent defaults. Issuing charges the State Bar knows are unsustainable is as clear an example as you'll find anywhere of "moral turpitude." (Bus. & Prof. Code, § 6106.)

Sunday, April 25, 2010

78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of review

8th in Philip E. Kay series
State Bar respondents are often unaware that the petition for writ of review, the ultimate review vehicle in State Bar Court, has nothing but its destination in common with the petition for review, the review vehicle in the courts of record. Court rules limit only the latter's length. State Bar respondents, otherwise enjoying fewer rights of review than other professionals, can file California Supreme Court petitions containing unlimited irrelevant matter. What explains the court's indifference to the length of a petition for writ of review, when it was so concerned about reading many short ones? It's simple: no one at the Supreme Court reads petitions for writ of review, not even a clerk. So I concluded when within hours of receipt the Supreme Court denied a respondent's petition I drafted.

Phil Kay has now filed a petition for writ of review. Of course, I'd prefer to be proven wrong about the outcome, but at least the petition isn't a completely wasted effort. It performs excellently in setting out and proving Kay's case; I'd recommend it to anyone wanting to understand this important State Bar case because of the petition's legal and factual truthfulness. This characterization doesn't apply to the opinions written by "courts" in the State Bar hierarchy (see disHONNest judge); and it must be admitted, it doesn't apply to the bulk of attorney submissions: being oppressed by the State Bar takes its toll on attorneys' ethics. (See The Richard Fine Story: An Objective Analysis.)

Previous kanBARoo court Installments touch the issues Kay's petition raises except for two related arguments that may have merit but which fail as stated. The arguments are summed up in Kay's theory that the State Bar's Kay decision is tantamount to a collateral attack on established superior-court verdicts. Specifically, Kay argues that a judge may only instigate a State Bar investigation by filing a complaint for what Kay calls "reportable actions." Business and Professions Code section 6086.7 mandates that judges shall report:
  1. A final order of contempt imposed against an attorney;
  2. Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
  3. Imposition of sanctions; or
  4. Imposition of a Family Code civil penalty.
Kay's related claim is that being cleared of trial misconduct necessarily clears the attorney of State Bar misconduct for the same offense. Kay's argument limiting the meaning of "attorney misconduct" and Kay's argument limiting judicial reporting to "reportable events" both treat circumstances mandating prosecutory reports as if they limit prosecution.

If only they did. The statute states that the judge shall report certain events, not he shan't report others. The State Bar hierarchy loves legal over-reaching because it invites simple rebuttal based on the statute's express language. When applied to trial misconduct, this argument presuming limitation to "reportable events" can engender particular confusion. When an attorney appeals to a jury's passions but doesn't succeed—maybe the misbehaving attorney loses—Kay's interpretation implies the judge has nothing to report, seemingly reducing Kay's argument to the absurd. The correct answer—that the conduct involved resolves into another "reportable event," namely a contempt conviction—is hard to grasp from Kay's claim that misconduct requires prejudice.

No doubt, the meaning Kay wants to find in the reported-events statute is what the statute ought to say, and I've contended it's what it must say to survive scrutiny under the U.S. Constitution's equal-protection clause, since holding lawyers to a higher standard at trial imposes a qualitative disadvantage on represented parties. Short of the constitutional argument, Kay can reasonably maintain that the charges he faces are improbable without the statutory events.

Kay intends to make the most compelling case. His forced interpretation of the mandatory-reporting statute doesn't serve his purposes. He should lay a foundation based on his Constitutional rights.

Wednesday, April 7, 2010

77th Installment. The Richard Fine Story: An Objective Analysis

The wrongly decided Fine v. Superior Court (2002) 97 Cal.App.4th 651 (continued)

Commissioner Bruce Mitchell's findings of fact need not detain us. By refusing to release his death grip on Fine's case and finding Richard Fine guilty of criminal contempt, Commissioner Mitchell deliberately acted without jurisdiction, proving his bias.

Another way Commissioner Mitchell expressed his lawless subjectivity was soliciting defense counsel to respond to Fine's appeal. (Ibid.) Mitchell's hubris led to greater openness than wisdom would have prescribed, but the Court of Appeal's bias in his favor outweighed the commissioner's foolhardiness. Although the Court of Appeal admitted this was Fine's most serious charge, the court responded with an unsupported legal conclusion:

Commissioner Mitchell, when advised that Fine had appealed from the "order" purportedly made on December 1, 2000, properly suggested that a response to the appeal would be in order and that the party responding could be entitled to attorney fees. (Ibid.)

How could the Court of Appeal miss the impropriety when a judicial officer exploits courtroom command to gain unfair advantage? How could it miss the commissioner's deliberate misstatement of law in announcing defense counsel owed a collective duty to file a respondent's brief? This false claim encroached defense-counsel authority and interfered with performance of their duty to determine their clients' interests independently .

Mitchell's contempt findings, reinforced by the published Court of Appeal case, became the basis for Commissioner Mitchell's State Bar complaint against Fine, the underpinnings unchallengeable in State Bar Court. Because the findings were incontestable res judicata, the State Bar Court and "Jailing Judge" Yaffe could ignore Fine's sound reasons for demanding Mitchell's disqualification: Commissioner Mitchell was Temporary Judge, serving by consent. The terrible Fine v. Superior Court (supra) decision, based on findings whose provenance defeats their credibility, is the main source of public confusion; but Fine, confusion's victim, contributes.

Richard Fine's misguided argument

Fine justifies his intransigence by Commissioner Mitchell and Judge Yaffe's omissions of County-provided benefits from their mandatory disclosures of contributors. Fine's argument, convincing no one outside a small group of conservative-libertarian true believers, hasn't ignited the public discussion the Fine case deserves. The relevance of these alleged failures to disclose to Fine's contempt conviction isn't immediately apparent, since neither County nor real-estate developers, alleged nongovernment beneficiaries of County's "bribes," were parties to the case.

Fine's argument that judges are derelict whenever they don't "disclose" County "contributions" borders on frivolous, since every judicial officer receives these benefits. The duties a disclosure requirement would impose on a judge who refused the benefits, a refusal that according to Fine is mandatory if judges are to avoid criminal prosecution, shows the wrongheadedness of Fine's nondisclosure argument. Whatever influence County exerts, it also potentially exerts on a refuser, who continues to enjoy the option of getting the benefits but has nothing to disclose. Disclosure simply doesn't address the bias! This shows that County-provided benefits to judges are not a "contribution" but a public entitlement.

This isn't to say Fine was mistaken in thinking Mitchell biased. If Mitchell wasn't initially, he surely became biased after Fine filed disqualification motions, bias proven by the commissioner's vindictive retention of jurisdiction over Fine's contempt. Fine was in a real bind, since Mitchell also presided over some Fine cases against County and land developers. Fine had to disqualify Mitchell in Fine's personal-injury case because he had challenged Mitchell in other cases, where Fine had better reason to suspect bias than provided by his silly nondisclosure theory.

The bias wasn't necessarily for County but clearly against Fine because he moved for Mitchell's disqualification in other cases, but bias in one case isn't legal basis for a judicial officer's disqualification in another. Fine's convoluted nondisclosure argument was a contrivance to disqualify Mitchell—who needed disqualification. Fine's mistake was making this contrivance his centerpiece argument, distracting from and replacing sound arguments based on Mitchell's and Yaffe's actual bias and the oppressiveness of long-term coercive confinement.

To the substance of Fine's argument that County-provided benefits create actual judicial bias, it's harder to say whether judges generally are biased by noncontingent benefits—at least to overshadow bias favoring the State of California, which pays judges' salaries; and it's hard to deny that the quality of judging would decline in Los Angeles County if judges' received 30% less remuneration. Los Angeles County Superior Court judges are better than judges in Joshua Tree, San Bernardino County, and maintaining this quality seems a legitimate County interest. Fine argues that County has no reason to pay judges besides buying favorable verdicts, but Fine and his supporters don't explain why the supply-and-demand truisms shouldn't apply to the selection pool for judges. If zeal for public service is supposed to replace monetary rewards, Fine is conceding that County has a legitimate interest in augmenting judicial remuneration to avoid judicial zealotry.

From Commissioner Mitchell's lies to Richard Fine's obfuscations

The public's understanding is clouded by Fine's legal and writing style, oversimplification of issues, inaccuracies, and disingenuousness concerning his motives. Fine is of the old-school legalese-style of legal writing I bemoan in Disputed Issues: he is at once dense and prolix; he raises a plethora of issues, without apparent regard for loss of credibility, due to his many bad arguments, or for loss of visibility, good arguments buried among bad. (See Legalese: Pomposity Ritualized.) If his case didn't arouse strong judicial prejudices, it would still be misunderstood because Fine is an awful writer.

Fine and almost all blogs writing about him oversimplify the issues, while Fine's inconsistent maneuvering overcomplicates them. The more unorthodox a legal theory, the more important is consistency in execution, but consistency isn't evident in Fine's strategies. Fine was inconsistent in execution when he agreed to Mitchell as Temporary Judge and didn't object until Mitchell started ruling against him. Fine's inconsistency doesn't mean Fine is wrong about the judges and the biasing effect of the County-provided benefits. From observing other jurisdictions where real estate is a major industry, I'm prepared to give credence to claims of corrupt influence lubricated by County payments to judges, but Fine and supporters resist gathering the data needed to assess bias based on verdicts.

Fine claims his opposition to County-provided benefits drove the State Bar to take his license and the judges to jail him for more than a year and counting. The record shows Fine's stance turned the judges against him; its vindictiveness is a discredit to the Los Angeles judiciary, but attorneys are disbarred for disobeying court orders, repetitively demanding disqualification, and suing judges personally. The State Bar's undemocratic policing in disregard of Constitutional rights is oppressive but no unique reprisal for Fine's campaign. Fine has shown that plaintiffs rarely win against County at bench trials, but absence of any control group makes this statistic meaningless; Fine's claim that the corrupt influence is "obvious" from the statistics is one of the more annoying parts of his defense.

Both sides obfuscate Fine's motives. Certainly his willingness to endure jail for a year demonstrates courage and sincerity, but Fine did not, as he implies, challenge Commissioner Mitchell for the direct benefit of his clients: he began his series of disqualification motions when Mitchell delayed granting him an advance on fees, court approval required in class actions. Fine's crusades weren't motivated purely by lawyerly zeal; he was on the verge of personal bankruptcy, and the financial crisis his office sustained was the ostensible reason Mitchell removed him as class counsel. Judging Fine's tactics requires perspective. Class counsel spend years on a case, and a vindictive decision by a judge can attack the class at what has become its weakest link, the attorney, but Fine's tactics created conflicting interests with his clients. Fine's trial tactics may be found defensible, even exemplary, but Fine's skirting the ethical issues they raise is disingenuous.


Fine's case has been relegated to the fringe because his supporters are too often tax rebels looking to score points against "big government." Their and Fine's outlook accounts for the outlandish emphasis on the contrived argument that judges can be disqualified for failing to "disclose" what is public knowledge—surely Fine's knowledge—about County-provided benefits. Fine has stronger arguments: the actual bias of the judges, long-term coercive confinement's unconscionability, and the State Bar's misuse of the "moral turpitude" rule to evade the First Amendment.

Related essay: "Abolish unlimited-term coercive confinement for civil contempt"

Saturday, March 20, 2010

76th Installment. Give Philip E. Kay his day before an “honest-to-God judge”

7th in Philip E. Kay series
Philip Kay resumed his accustomed role on the plaintiff's side by suing the California State Bar. State Bar respondents should seek new strategies because 1) strategies unanticipated by the state-bar establishment are more likely to prevail; and 2) the known options have a low probability of success. Kay's 92-page first-amended complaint contains a novel strategy for state-bar defense. (Case No. CFF-10-496869, Cal. Superior Court, San Francisco.)

Kay's clever idea asks the superior court to enjoin the State Bar from recommending his disbarment. A plaintiff can obtain injunctive relief or any equitable remedy only when remedies at law are inadequate, and Kay's suit will survive demurrer only if he shows the existing Supreme Court review process is sham. Kay's complaint—containing argument and numerous citations to case law and looking more like a brief—argues that allowing the State Bar to pass its recommendation to the Supreme Court will cost time and expense when Kay subsequently sues to vacate the judgment, irreparably harming Kay and his clients.

This is undoubtedly the weakest point of Kay's case. Kay sidesteps arguing that review by the Supreme Court is an infirm remedy at law by treating posttrial relief as remedy; but the alternative, arguing in superior court that review by the Supreme Court is not an adequate remedy at law, could seem worse. Any way Kay pleads the case, the likelihood of his prevailing in superior court is nonexistent; the likelihood of surviving demurrer, negligible. His object should be to bridge to the federal courts, and to satisfy federal jurisdiction, he must challenge the adequacy of the petition mechanism. To dispel the apparent absurdity of a contest of the petition's adequacy, Kay should emphasize that the Supreme Court rules on a petition for writ of review by exercising a separate plenary power over the State Bar, not in the Supreme Court's role as court of last appeal.

Justice Brown's In re Rose dissent summarizes the basic argument for the inadequacy of the petition for review:
As the court itself has acknowledged only recently, changes in our own rules made in the wake of legislative amendments to the administrative procedures governing bar discipline proceedings "relieve the court of the burden of intense scrutiny of all disciplinary recommendations." [Citation.]...Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. (In re Rose (2000) 22 Cal. 4th 430, 466 [Dissenting opn. by Brown, J.].)

Disdaining the "advances" of the California Bar system, which congratulates itself for providing fake judges to oversee attorney discipline, Justice Brown continues:
The host of practitioners of this and that trade, licensed and regulated by government agencies, has access to administrative mandamus in discipline cases, where judges of article VI courts review questions of law de novo and questions of fact under the substantial evidence standard. They get both a full plate of administrative due process and real judicial review. Before honest-to-God judges. [Citation.] (In re Rose, supra, 22 Cal. 4th at p. 469. [Brown, J.].)
Justice Brown stopped short of concluding the review procedure fell below minimum U.S. Constitutional standards for due process and equal protection: her dire prognosis proved over-optimistic. In re Rose was the Supreme Court's first and last State Bar case after the Legislature downgraded attorneys' entitlement to judicial review. The Supreme Court's blindness when denying review also proves its remedial inadequacy, as in my case, where the Supreme Court ignored the State Bar's fraud, publicly documented in my petition for writ of review; the identified perpetrator Melanie J. Lawrence remains on the State Bar's payroll.
State Bar rules lock respondents into their positions. Respondents must assess the risks of waiver even more carefully than in superior court. Kay may find it hard to rebut allegations that his filing a petition for writ of review, recently denied by the California Supreme Court, waived contest of the review mechanism.
Corrections (March 21, 2010):
In my rush to publish, two errors crept into my account:
First the good news. Philip Kay's petition for writ of review remains unfiled, changing my commentary's nature from expression of regret to suggestion. This is good because suggestion is better than regret.
The bad news is that the Supreme Court considered In re Silverton, another State Bar matter, following In re Rose. (See In re Silverton (2005) 36 Cal.4th 81.) I should have written "In re Rose was the last petition for writ of review the Supreme Court granted." In re Silverton is the exception that proves the rule that the Supreme Court has abandoned the practice of reviewing State Bar cases. The Supreme Court first denied Silverton's petition and reviewed the case on its own motion, disbarring Silverton despite the State Bar Court's recommended suspension.
In re Silverton told State Bar respondents that only ill could come from filing petitions for writ of review: petition denied but attention granted. The Supreme Court's punitiveness in Silverton shows a Supreme Court as malicious as the State Bar, but I'm afraid the case weakens the argument that the Supreme Court provides no review.