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.

3 comments:

Stephen R. Diamond said...

Mr. Hoffman provides details in Comments (#29, #30, and #35) to the cited ABAJournal entry (http://tinyurl.com/25sqrjy)

Anonymous said...

It seems like many state bar cases are inordinately old. I guess they don't have a SOL or the doctrine of laches. Thus it takes until 2010 for a former deputy DA to face consequences for acts committed in the mid-90s or the defense attorney who is suspended in 2008 for failing to ask for a continuance in death penalty case in 1982, even though the CA Supreme Court said it was harmless error. Stuff that really does make the state bar court seem like it's presided over by the mascot of Down Under.

Stephen R. Diamond said...

Anonymous,

A five-year statute of limitations applies to outside complaints in state bar matters in California. (I don't know about the Illinois limitations rule in state-bar matters.) But no limitation applies to matters the state-bar initiates. What the world hasn't known until Philip Kay's discovery forced the California state bar to admit the fact: complaints by judges are (illegally) treated as complaints from within the state bar. In fact, judges are allowed to choose whether to be considered part of the state bar or an outside complainant. If the judge decides to have his complaint considered "state-bar initiated," not only does he avoid any statute of limitations but the state bar respects and protects the judge-complainant's anonymity. You can read more about the practice and its unearthing by Kay at http://tinyurl.com/22w8r5o