Monday, January 25, 2010

73rd Installment. Mendacious Judge Armendariz's Kay Opinion

(6th in Philip E. Kay series)
The California State Bar Court's Judge Armendariz rushed to assure embroiled superior-court judges she would avenge their professional humiliation. Judge Armendariz stated in the third sentence of the State Bar Court Opinion ( regarding respondent Philip E. Kay:

[S]omewhere during [Kay's] overzealous advocacy, he lost it, not the cases, but his integrity, professional decorum, credibility, and respect of the court.

The unjudicial, even schoolyardish, swipe at Kay shows a vicariously embroiled jurist. Her gratuitous slur on Kay's integrity foreshadows her helping the Office of the Chief Trial Counsel turn Kay's exercise of professional judgment into proof of his moral turpitude. The ethical justification for Kay's harsh three-year suspension lies with the moral-turpitude allegation—the attack on Kay's integrity—an important insight because the case's procedural posture limits Kay's arguments. The ethical role of the moral-turpitude charge allows Kay to rebut Judge Armendariz's opinion by focusing on that charge's falsity as a matter of law.

Kay's procedural posture is that the Bar Court imposed a terminating sanction when Kay refused to retake the stand; to prevail, he must attack the entry of default or rebut the charges as a matter of law, as all the State Bar's alleged facts are deemed admitted. If the facts are legally sufficient to constitute the charges, the State Bar must prove only the warrant for the terminating sanction. To rebut a case of selective prosecution like the one against Kay, a defendant must ordinarily introduce evidence, but relevant evidence is typically impossible to obtain, making most selective-prosecution cases impossible to defend. Unusual for a selectively prosecuted defendant, Kay can document collusion between the Office of Chief Trial Counsel, the Bar Court, and a complaining superior court judge, but Kay was precluded from proving his case at trial when state-bar provocations drove him from the witness stand and the Bar Court illegally entered his default.

Despite the terminating sanction and entry of default, Kay retains two arguments: 1) as kanBARoo court previously discussed, entering Kay's default was illegal; and 2) finding Kay committed acts of moral turpitude is plainly ridiculous. Although defeating the moral turpitude allegation wouldn't compel dismissal of all charges, it would strike at the ethical center of the State Bar's case. If Kay's acts weren't acts of moral turpitude, the whining judges are mere sore losers; the State Bar's need to destroy Kay's reputation derives from the common-sense requirement that Kay's objectionable conduct demonstrate Kay's moral unsuitability to practice law if the judges' age-old grudges are to warrant avenging. Kay should win on the State Bar's jurisdictional incapacity to enter Kay's default for refusing to continue testifying, but the Supreme Court won't reverse the decision on that basis because the last thing the courts want these days is having to participate in State Bar cases; the Supreme Court enjoys the expedient of denying review for no stated reason. Perhaps the Supreme Court might show some sympathy for a distinguished attorney the State Bar Court was trying to brand morally depraved for reasons unrelated to Kay's doing anything immoral.

The direct route to undermining the Bar Court's moral-turpitude thesis is to defeat the moral-turpitude charge:

By repeatedly filing duplicative and frivolous motions for an improper purpose, namely to harass and manufacture bias in a court and interfere with the court's proceedings, and by falsely accusing the court of bias, of assisting the other side, of treating the parties differently, and, thus, of judicial misconduct, respondent willfully committed an act or acts involving moral turpitude, dishonesty or corruption, in willful violation of section 6106.

If "moral turpitude" sounds worse than a lawyer's doing his job by "attempting to manufacture bias" through filing too ardently, your ear's verdict agrees with moral-turpitude's legal definition:

[A]n act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. (People v. Mansfield (1988) 200 Cal.App.3d 82, 87.)

The disparity between the charge against Kay and moral-turpitude's definition is that the definition requires Kay's violating a fundamental social duty, while the State Bar charge concerns breaches of narrow, legally constructed courtroom duties. A lawyer doesn't commit an act of moral turpitude by filing too many papers; filing too many papers isn't base and vile!

A deliberately false representation to the court is another matter, as deceit is moral turpitude, both commonly and legally understood. The Bar Court mendaciously accuses Kay of deliberately misleading the court, but Judge Armendariz concludes that Kay committed acts of moral turpitude by supposedly misrepresenting "facts" that are mere characterizations of the courtroom conduct of judges, such as claims a judge showed bias ("falsely accusing the court of bias"). Not satisfied to attack Kay for his alleged disrespect of judges, Armendariz uses the same comments that she had held prove Kay disrespects the courts to prove Kay was dishonest because his negative opinions of judges were untrue. Accusing judges of misconduct, even if the charges aren't true, isn't "base and depraved" unless the accuser knows the accusation false or accuses recklessly.

The moral-turpitude charge encapsulates the calumny against Philip E. Kay. The charge's outrageousness invites its demolition.

On Judge Armendariz's obfuscatory writing style, see Disputed Issues, "And/or and the (un)lawyerly practice of weaseling."

Friday, January 8, 2010

72nd Installment. “Legal ethics” should be about ethics: The law’s “communicative scandal” as an ethical issue

A critique of the state-bar establishment rarely undertaken inquires about the shape of an ethical-and-intelligent ethical code. The corrupt and incompetent state bars and their academic allies have distorted the subject matter of legal ethics itself so that it doesn't recognizably concern ethics. "Legal ethics is no more related to ordinary ethics than Madison, Wisconsin is to James Madison," wrote one blogger. An ethical code shouldn't be written to guild interest or for solving every problem concerning service delivery; its rules should express only the core ethical content of loyalty to clients and truthfulness in dealing with them, but it should deal with these matters comprehensively.

An example of a domain the state-bar establishment ignores, chosen only because of my familiarity, concerns law firms' brief-and-motion-writing policies, implemented despite knowledge that they produce inferior documents. The subject is worthy of being treated as ethical because it's about loyalty to clients or truthfulness with them; which of the two core ethical values is implicated depends on the terms of the firm's employment. When a client retains a law firm on contingency, the firm's failure to allow legal writers enough time to produce near-best quality is usually a failure of loyalty to client; when a client retains an attorney at an hourly rate, the issue becomes the firm's truthfulness, since producing work of mutually agreeable quality isn't untruthful or disloyal, although, arguably, the civil codes should discourage contracts for subpar legal performance. The issue of truthfulness is whether the firm misled client about extending firm's best efforts on client's behalf.

The horribleness of writing in nearly all legal briefs and the weakness of analysis in most has become a standing scandal in law. Overwhelmingly, lawyers who must write say they aren't given sufficient time to write well, and have never had a legal environment that invested in their writing skill. The culprit is another of today's crescendos of market failures. Law firms might find it profitable to allow associates enough quality writing time for improvement if the firm anticipated employing these associate attorneys ten years hence, but long-term employment isn't expectable. The legal profession's communicative scandal makes "good enough" standards for administering firms' legal-writing practices essential to the profession's self-respect, but these reasons of public policy don't justify treating the matter as ethical. Standards providing for the ample allocation of law-firm time to writing projects are ethical standards because inferior writing is a major way clients are willfully cheated.