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 [http://tinyurl.com/33amqcz].)

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.

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.