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

Background

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.

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

9^th 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.)