Friday, December 9, 2011

93rd Installment. Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen R. Glass embarrassment

Three years ago, the California State Bar’s Office of the Chief Trial Counsel became the state-bar establishment’s laughing stock when it had to admit that, during an eight-year period, it lost $675,000 to a single thieving clerk. Today, the Bar Court takes its turn at displaying ineptitude that will make the state-bar establishments throughout the country cringe. The State Bar Court Hearing Department, the nefarious Judge Richard A. Honn presiding, reversed the State Bar Board of Bar Examiners to allow the fraud Stephen R. Glass to be admitted to the bar. Judge Honn was affirmed by a 2 – 1 vote in the Review Department, but the California Supreme Court will hear the case on writ of review to decide whether Glass presented sufficient evidence to adjudge him rehabilitated. Glass’s application is a joke, and the Supreme Court will reverse the Review Department. (Jack Shafer sets out the facts of the case in a piece I recommend.) 

Glass wrote for The New Republic news magazine, which fired him in 1998 after he had fabricated facts for more than forty articles, deceiving a mass readership by lying to his editor and submitting manufactured evidence to his fact checkers to validate his content. His case for admission in California—New York rejected him—consisted of two parts: he explained the origin of his lying ways by claiming his parents were harsh and demanding, and he vouchsafed his present moral character with 22 character witnesses. His tales about his parents bending the twig are fraught with obvious problems regarding the relevance of the psychological speculation and the credibility of a liar, and record evidence rebuts his rehabilitation. Glass hid half his fraudulent articles from the New York State Bar; he claimed he had corresponded with victims of his libels years before he did in fact; and he lacked compunction about continuing to benefit for years from his ill-gotten gains, even profiting from a novel retelling his adventures in fraud.

I’m unconcerned here with Glass’s fate, concerned only with what the State Bar Court’s findings reveal about its workings. Why were Judge Honn and two judges on the Review Department panel taken in by an obvious psychopath, his schmaltzy childhood stories, and his demonstrated ability to manipulate benefactors—like his character witnesses?

The first reason is the Bar Court’s delight in spectacles of feigned contrition. Glass staged a grand spectacle, not only his huge witness list but also his groveling before the court. Trained to administer “discipline” by humiliation, Honn and company found Glass’s obsequiousness irresistible.

The second reason Glass could dupe the Bar Court is its prejudice favoring large law firms. Glass works for a highly capitalized plaintiffs' firm, Carpenter, Zuckerman & Rowley, which is rich enough to take on the largest defense firms and is, for practical purposes, in their league. The State Bar proved it would not hold big law accountable when Girardi and Lack escaped any State Bar censure after the Ninth Circuit Court of Appeals had found malfeasance.

The third reason is that the California State Bar, due to its commitment to political correctness, will treat homosexual petitioners and respondents capriciously. Sometimes, as here, the court can’t resist a gay sob story; whereas in other cases, such as Tore B. Dahlin’s, it penalizes excessively. Moralism, hyper-emotionality, and authoritarianism combine to make a measured response to homosexual petitioners and respondents impossible.
You didn’t know that Glass was homosexual? Neither did most others if they hadn’t read the novel or seen the movie, but Glass’s sexual orientation is relevant—because he put the etiology of his conduct disorder at issue. Judge Honn avoided drawing connections, despite Glass’s childhood gripes’ obvious relationship, for example, his unpopularity in school and his unease when playing the husband's role in a childhood skit. Judge Honn’s psycho-babble, combined with Honn’s avoidance of themes that offend political correctness or contradict Glass’s personal narrative, show the State Bar Court is incapable of fulfilling its most rudimentary obligation: excluding psychopaths from the profession.

Friday, November 25, 2011

92nd Installment. Ethics of Ghost Blogging

Should the state bars regulate law blogs as advertisements? You might think that advocates of blog regulation would classify blogging as a form of advertising, but they don’t urge this classification, one reason being that the main target of their regulatory ambitions is the authorship of blog postings, whereas nobody contends law firms must write their own ads.

The criticisms of ghost blogging conceive of a law blog as showcasing the attorney’s knowledge, the reverse of the concerns about ads. The ABA Model Code of Professional Responsibility EC 2-10 directs attorneys to avoid “undue emphasis upon style and advertising stratagems which serve to hinder rather than to facilitate intelligent selection of counsel,” but as described by ghost-blogging opponents, blogging is an advertising stratagem involving a sophisticated form of bragging. “Our knowledge is our stock in trade. If you believe that I know more because you read it on my blog and I, in fact, did not write that blog, I am deceiving you.” (Legal Ethics Forum, Comment by Charles M. Rowland II.)

The fear ghost blogging’s opponents harbor is that attorneys lacking knowledge of an area of law will deceive clients about their lawyerly competence. While various obvious measures could prevent such deceit, to see this as a significant threat is to misapprehend the state of the legal market. There simply aren’t many, if any, professional bloggers with the legal knowledge that would impress clients, yet with the willingness to work for the pittance a law firm pays a blogger.

Deceit about authorship is obviously unethical, and whether any instance of ghost blogging is deceitful is a question of fact; this much is platitudinous. The interesting question is why the ghost-blogging opponents worry about what’s so unlikely: what do they really fear? Not that bloggers will embellish the limited skills of some attorneys, but that attorneys who blog—as ghost-blogging’s opponents often do—won’t receive the recognition due them. They don’t want clients saying, “That sounds good, but everyone knows an attorney never authors his own blog.” They don’t want their blogs discounted as signals of their competence. Although law-competent ghost blogging is a chimera, a cynical public is receptive to that meme.

Regulatory support for authentic attorney blogging is a good idea, since allowing the public to rely on a signed blog as a sort of work sample would be a positive development for the profession. But the profession must confront two problems. The first concerns the definition of advertising, which the Model Code doesn’t define and the California Rules of Professional Conduct defines as communication “primarily directed to seeking professional employment primarily for pecuniary gain transmitted to the general public ….” (Rule 1-400(F)(12).) Under this definition, a blog is probably an advertisement, and law-bloggers’ subtle sales pitch is, strictly speaking, illegal—due to its being a style-based advertising strategy—under the Model Code's persuasive authority.

Until the legitimacy of blogs is officially recognized, the law menaces blogging attorneys. Ghost-blogging opponent and prominent member of the “respondents’ bar” David Cameron Carr states, “So far California's discipline system is focusing its limited resources on more egregious misrepresentations than ghost blogging.” Measures that would favorably shape the profession are never a high state-bar priority, and ghost-blogging issues are bound to be especially low priority, since ambiguity enhances the state-bar’s power.

The second problem the profession must confront is the over-reaching of blogging attorneys, who are too ready to overkill by banning ghost blogging, deceptive or not, to improve their competitive position.

Monday, November 7, 2011

Interlude 23. War criminal Jay Bybee purchased exoneration

The two lawyers who legally justified water-boarding—denying its character as torture—were John Yoo and his Department of Justice supervisor, Jay Bybee. Yoo subsequently landed a plum job as law professor at the University of California, Berkeley; Bybee, an even more plum one, life appointment as judge on the United States Ninth Circuit Court of Appeals. The attention of kanBARoo court previously focused on Yoo, who, as the direct perpetrator, was if not more culpable at least more obviously so. But Bybee’s recent mandatory disclosure that he received $3.2 million in legal services, contributed gratuitously by the giant international law firm Latham & Watkins, raises new issues.

The official ethicists find this huge gift troubling but hard to criticize. The obvious worry is that it will bias Bybee to favor parties Latham represents, but Bybee, so far, has reportedly recused himself from cases contested through the giant-firm’s offices. Neither the firm, in offering the gift, nor Bybee, in accepting it, broke any official ethical rule.

But the ethicists’ perception of Bybee as innocent speaks primarily to the ethical-rules’ bias and ethicists’ gullibility. A giant law firm is, in practice, a corporate entity, serving the financial interests of its owners, the equity partners. The forum of its intervention being an ethics investigation, Latham’s efforts lacked the public-relations appeal of a highly visible case. What’s in it for Latham & Watkins?

Bybee may have recused himself, but he still has not conducted himself as proper ethical rules would require, as he failed to commit himself to any definite continuation of his self-recusal policy. By not recusing himself permanently from cases involving Latham & Watkins, he tacitly threatens any party litigating against a Latham client with the possibility that Judge Bybee will have stopped recusing himself by the time its case is appealed. His temporizing stance subtly alters the balance of power in favor of Latham clients, a bias that—when iterated many times over—may substantially benefit Latham & Watkins. Any rational settlement negotiator for an opposing party will need to take into account the possibility that this case will be heard on appeal after Bybee has stopped recusing himself.

Wednesday, September 28, 2011

Interlude 22. Against routine public discipline

The consensus among state-bar ethicists holds that most disciplinary actions should be publicly accessible. The ethicists fail to recognize that their claims of the public’s right to know contradict their rhetoric about discipline’s public-protective role; if public protection were really what they want, ethicists would advocate imposing discipline at levels where the likelihood that an attorney will re-offend equals the likelihood that an undisciplined attorney will offend. This equilibrium would render publishing discipline records redundant and self-defeating. (To expose this muddle, I momentarily put aside my many objections to the ethical codes’ content.)

The likelihood of re-offense—the recidivism rate—should be crucial information for ethicists who believe public protection is paramount, because a rate higher for repeat offenses than for first offenses exposes the public to exceptional risk when attorneys return to practice. If they return unrehabilitated attorneys, the bars can hardly blame the public for its distrust! A paramount public-protection purpose, then, would impel the bars to discipline more severely—or if no level of discipline can neutralize disciplined respondents, to abolish graded discipline, disbarring any offending attorney. A recidivism rate, on the other hand, lower than the first-offense rate would mean that disciplined attorneys are overdeterred, because they're penalized too severely. Attorneys cowed into subservience pose another risk to clients: picking a blunted instrument.

The bars justify publicizing discipline cases based on the public’s right to know about measures bearing on attorney qualifications, but if they disciplined for public protection, they would rehabilitate fully or disbar. But then, the public would have no interest in knowing an attorney’s discipline history. Publishing and posting the identities of disciplined attorneys, in fact, would oppose the public interest; these practices create disparities in effectiveness between disciplined and undisciplined practitioners, since not just the public, but judges too, access public information.

Who knows the recidivism rates for disciplined attorneys? Surely not the state bars. Where are the state-bar studies concerning suspended respondents’ recidivism? That absence opens another window on the state-bars’ incompetence: their unconcientious abdication of serious professional regulation. And where are the state-bar studies of suspended attorneys' subsequent careers? Studies would probably show that public access to discipline histories levels the nominal gradations. Again, who knows?

Thursday, August 18, 2011

91st Installment. Raw deal on new Cal. State Bar Court Rules of Procedure

Shortened time and attorneys’ fear of the State Bar limited public comment on the Rules of Procedure revisions to a critical handful, the State Bar having maintained, with only apparent persuasive success, that the new rules—in light of the rights afforded other occupations—are fair and proper for attorneys. But the new rules degrade attorneys’ procedural and even substantive rights, in desperate violation of California law, as the State Bar struggles to handle its fourteen-hundred-case backlog. The rules’ most important changes concern discovery rights, rules of evidence at trial, and bases for disbarment, each change disadvantaging State Bar respondents, not only compared to the old Rules of Procedure but also to the protections other professionals obtain in California, as well as to protections due attorneys in most other jurisdictions.

Illegality of the new Rules of Procedure.

The changes to the Rules of Procedure are illegal under California law. New rule 5.65 limits respondents’ discovery to admissible documentary evidence and to identifying information concerning persons knowledgeable about admissible evidence—without corresponding limitations applying to prosecutorial discovery, which can include respondent depositions. Thus, the Civil Discovery Act no longer governs attorney discipline, notwithstanding the California Supreme Court’s holding:
Since respondent acts herein as an instrument of the courts, its activities should be governed by those statutory principles which have been enacted as rules of procedure for all courts. By whatever name a disciplinary proceeding may be called, whether an action or special proceeding, it is in essence the initial stage of an action in court. It follows that the discovery act, in toto, is applicable thereto. (Brotsky v. State Bar of Cal. (1962) 57 Cal.2d 287, 301.)
The Civil Discovery Act authorizes discovery of nonprivileged information calculated to lead to admissible evidence, regardless of that information’s lack of direct relevance. (Cal. Code Civ. Proc., § 2017.010.)

While the old Rules of Procedure did not expressly authorize use of the Evidence Code (as they did the Civil Discovery Act), the Bar Court had accepted the California Evidence Code, and the same logic that applied the Discovery Act to the State Bar Court in Brotsky also prescribes the State Bar’s obedience to the Evidence Code. The new evidence provision, rule 5.104(C), admits any evidence customarily relied upon in serious matters, and rule 5.104(D) specifically admits hearsay evidence when it clarifies the implications of non-hearsay evidence.

The new default rule, rule 5.82(4), permits disbarment of any defaulting respondent, a truly desperate and draconian measure that imposes disbarment as the de facto punishment for default. The rule creates a new basis for disbarment, violating Business and Professions Code section 6078, which prohibits charges for nonstatutory causes. Rule 5.82(4) expedites the State Bar’s longstanding exploitation of alleged minor infractions as occasions for fishing expeditions, since the Office of the Chief Trial Counsel can now charge a Member with an offense warranting only an admonition yet impose disbarment if the respondent declines to cooperate with the investigation or submit to trial. Respondents' rights upon default have long been in a sorry state—all facts alleged in the Notice of Disciplinary Charges are deemed admitted, however nonexistent their basis—now, unspecified facts warranting disbarment are presumed.

Attorneys’ rights compared to other professions in California.

State Bar apologists have convinced some by arguing that the new rules equate with the protections other occupations receive under the Administrative Procedures Act (APA), but the argument ignores key facts about the APA. (Gov. Code, § 11340 et seq.) First, tethering to rights granted criminal defendants has narrowed the rights afforded under the APA. The Legislature passed the APA in 1945, before California established civil- and criminal-discovery procedures. California common law since expanded the rights under the APA in tandem with criminal procedure, but in 1990, the reactionary voter initiative Proposition 115 (styled the "Crime Victims Justice Reform Act") eliminated criminal defendants’ common-law rights by restricting their procedural rights to those provided by the U.S. Constitution. The California Supreme Court tempered the constitutional amendment, Article 1, section 28, and derivative changes to the Penal Code, but running scared in the aftermath of the 1986 recall of Chief Justice Bird and other liberal justices, the court ratified the initiative’s thrust: to interpret California criminal-defendants’ rights no more expansively than the U.S. Supreme Court interprets the U.S. Constitution’s Bill of Rights. The curtailment of independent state grounds extended even to allow the use of hearsay evidence in preliminary criminal hearings, where prosecutors establish probable cause. (This despite preservation of the California Constitution’s Article I, section 24: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”)

The second fact ignored by the State Bar’s propaganda for reducing attorney rights to the APA level is that other statutes supplement the APA as it applies to various occupations—rendering comparison between the Rules of Procedure and the bare APA inapposite. The chart below compares the new Rules of Procedure governing attorneys, the bare APA, and its application to other professions.
(Click to expand)
Most noteworthy is the protection of teachers threatened with discharge or suspension from government employment. California statutes provide teachers, as they did attorneys under the old Rules of Procedure, with the discovery rights of civil litigants under the Discovery Act. As additional protection, an accused teacher is tried by a three-person panel that includes an adjudicator chosen by the respondent. Also included in the teachers’ panel, as in hearings under the APA generally, is an administrative-law judge from the Office of Administrative Hearings in the Department of General Services. (Gov. Code, § 11370.1.). Teachers need heightened protection comparable to attorneys because like attorneys, who may suffer retaliation when they represent unpopular or powerless clients, teachers may suffer it for what they teach. (Recall the Scopes trial.)

Doctors receive some heightened protection in their right to depose opponent expert witnesses, denied attorneys except by specific motion. Doctors don’t get the broad discovery rights contained in the Civil Discovery Act, but the results of applying most of the APA to the medical profession aren’t encouraging, even though doctors lack the special retaliation-related concerns of the inherently politicized professions, law and education. Medical delicensing hearings are notorious for their use by hospitals to axe unpopular physicians, whom administrators may resent precisely for their concern with quality care.

Even the rights of California attorneys compared to occupations governed by the bare APA are wanting. The APA provides for trial by an administrative-law judge, who is apt to be more impartial than a judge attached to the State Bar Court by serving in its Hearing or Review Departments. The impartiality of the hearing officer is, after all, the most important consideration in obtaining just outcomes. (Ward v. Village of Monroeville (1972) 409 U.S. 57, 59–60.) The unique right retained by California attorneys, to move for additional discovery, may actually benefit the prosecution because such motions must establish strict relevance—as perceived by the Hearing Department judge.

California attorneys’ rights compared to attorneys in other jurisdictions.

While the State Bar exaggerates attorney rights compared to California professions under the APA, it avoids comparison with attorney-discipline procedures in other jurisdictions. Fortunately, the New York State Bar Professional Discipline Committee recently (June 2009) studied the comparative issues. The New York report, among its other comparisons, examined how the U.S. jurisdictions compared on discovery and evidentiary rules. 

Regarding discovery, the New York study divided U.S. jurisdictions into three groups, finding that 8 states allowed almost no respondents’ discovery, 6 allowed some, and 35 allowed all or almost all discovery available to civil litigants. California now falls behind 70% of jurisdictions with regard to the discovery afforded attorneys in discipline cases. With regard to rules of evidence, 70% of jurisdictions (not the identical 70% allowing full discovery) apply nearly the same rules as in civil trials.

The California Bar has fallen behind the great majority of jurisdictions in respondent rights.

Friday, August 5, 2011

90th Installment. Behind the James Towery Ouster: California State Bar Gets Even Worse

Nobody quite knows why James Towery—the replacement for ousted extremist Scott Drexel—resigned on July 1, one year into his term as chief trial counsel for the California State Bar. Publicly, Towery blamed the resignation on the logistics of his commute from his San Jose residence, but the subsequent firing of four managers by the State Bar’s executive director, Joseph Dunn, convinced even David Cameron Carr, leader of the State Bar defense establishment, that the so-called resignation—precipitated by the California Senate’s failure to confirm after eleven months—was the beginning of a purge.

Yes, but who comprise the factions? Immediately following Drexel’s ouster, kanBARoo court surmised that the State Bar defense establishment spearheaded it. But the Towery purge wasn’t the prosecutory bar’s revenge. At issue—what to do about the huge backlog created by Drexel’s excesses (as well as some of Towery’s in the foreclosure arena).

Towery’s contention with the State Bar’s political leadership centered on the new rules, effectuated in January 2011. In his public comment on the proposals, Towery—while pretending a general sympathy with the rules—opposed all the major proposed changes:

  • Eliminate most discovery from State Bar court proceedings
  • Remove the Evidence Code in disciplinary proceedings, replacing it with the rules prevailing in administrative courts
  • Automatically disbar defaulting respondents

Towery submitted (verbatim) the following criticisms in August 2010 after the Board of Governors allowed extra time for public comment to allow the new chief trial counsel to submit a response:

  • As for discovery, each party should continue to be allowed at least one deposition of a nonexpert witness and without court approval;
  • Unlimited depositions of expert witnesses;
  • Parties should be allowed to take depositions of out-of-state witnesses;
  • Parties should have the right to unlimited depositions in reinstatement and moral character cases;
  • As for the evidence standard, reliability and predictability of evidence is best served employing the high standards and safeguards of the Evidence Code;
  • The relaxed standard of evidence would permit parties to offer large quantities of hearsay testimony and documents
  • APA hearsay objections can be lodged but not ruled upon until just prior to submission;
  • Outside training for judges and OCTC counsel may help with the undue consumption of time pertaining to evidentiary objections.

But these comments don't address the backlog. Towery's alternative for cleaning it up might have been the "fire sale on settlements" disavowed by Executive Director Dunn, an alternative bound to be unpopular with the State Bar's prosecutory wing—and wildly popular with the State Bar defense establishment (the "respondent bar," who participate in deliberations.)

Friday, March 4, 2011

89A Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 2. Homophobia

Any one of several initially plausible theories, ranging from the state-bar's incompetence to its viciousness, might explain the severity it inflicted on Dahlin.

The first theory, suggested by scattered state-bar commentary, is that Dahlin, in reality, was disbarred for associated conduct rather than, as ostensible, the commingling of funds. The bar court wrote vaguely of the general aroma of dishonesty surrounding the "misappropriation," and though only sporadically, it alleged certain specifics, most significantly accusing Dahlin of prematurely representing to a superior-court judge that he had distributed all trust funds. Now, if this allegation were true, the offense would be very serious misconduct, certainly involving moral turpitude. Dahlin not only would have lied to the court but, committing the perfidy of disloyal dishonesty, lied to thwart the court's efforts to protect his clients' rights.

This theory implicates the state-bar's incompetence because if what's alleged were true, the bar—basing its case on the wrong infraction and, consequently, driven to exaggeration to justify disbarment—would have demonstrated by practically ignoring the truly disbarrable acts of dishonesty and disloyalty that it fails to grasp even the concept of moral turpitude. In some ways, this rings true. To the state bar, the worst misconduct involves money—regardless of how slight the attorney's fault—simply because the state bar is the payer of last resort when client funds are misappropriated.

But the theory caricatures the incompetence of the state bar, which disbarred Richard Fine for a single alleged misrepresentation to a judge. Extreme caution in accepting the allegations that this theory relies on is warranted, due to the state bar's lack of credibility. Its allegations of misrepresentation should not be granted automatic credence, particularly when the findings omit Dahlin's counter-contentions. More likely, the bar court, which didn't quote Dahlin's language or the superior court's, lacked a case against Dahlin for dishonesty or disloyalty.

The second competing theory has Dahlin disbarred for challenging the state bar's authority. Dahlin thinks his insistence on redacting confidential information incurred the state bar's enmity, but redaction doesn't affront the prosecutor. To the contrary, the more onerously state-bar prosecutors can burden a respondent, the happier they are; this explains the absence of a page limit on pleadings and petitions. The state bar is delighted when the respondent insists on laboring harder, as it furthers the bar's war of attrition and realizes the bar's hope of exhausting respondent or his resources.

The last possibility is that the state bar's animus was personal: the prosecutors and judges disliked the man. Personal prejudices shape an unaccountable police agency free to implement them, but which of Dahlin's traits could make the entire bar apparatus hate him? To answer the question, you must know more about Dahlin, something easy enough to discover: Dahlin is gay and demonstratively so; colloquially, he's a flaming homosexual, and to prove it, he made a gay movie.

State-bar homophobia is ironic in that Lesbians predominate among its deputy trial counsel. (Our Prosecutrix, Melanie J. Lawrence, swaggered into the courtroom looking like a boy.) Ironic but not contradictory, as Lesbians, who reject men, tend to be most offended by those returning the favor.

Public knowledge of Dahlin's sexual deviance helps discern the source of the state-bar's animus, but how many respondents whose offensive traits aren't so public receive the spite of the unaccountable state bar, effecting all the prejudices inherent in a mentally aberrant clique?

Wednesday, February 16, 2011

89th Installment.The Tore B. Dahlin matter: A case of spiteful sentencing. Part 1. The disbarment

Sentencing severity is rarely a hot kanBARoo court topic, since any public punishment is equally devastating when the state bar feverishly universalizes knowledge of a Member’s punishment history, but Tore B. Dahlin’s disbarment is the rare illuminating severity case. Dahlin’s disbarment is exceptionally disproportionate to his offense, and his account of his prosecution exceeds demonstrating the state-bar’s capriciousness, to reveal the mainsprings of its viciousness.

In obedience to court orders, family-law attorney Dahlin opened two interest-bearing trust accounts holding approximately $70,000 and $60,000, but for reasons in dispute, he withdrew the money. Commingled or not, the funds were disbursed promptly, and if a client hadn't unwarrantedly complained to the bar, no one, not the bar, not the clients, would have known of any irregularity, because Dahlin’s handling of the funds was undetrimental. (The state bar alleges Dahlin delayed discharging client debts for six months, but no official pressure or complaint was required to release the funds.)

To measure the magnitude of Dahlin’s transgression, we must be clear on why the law requires attorneys to keep money in trust accounts: a private account risks the client’s funds if a hypothetical creditor levies on it. As the Supreme Court observed in Bernstein v. State Bar (1972) 6 Cal.3d 909, 916-7 [citing Peck v. State Bar (1932) 217 Cal. 47, 51]), keeping client funds in a private account potentially risks them, although the funds emerge unscathed,. But a moral gulf divides an attorney who, in this speculative sense, has jeopardized client funds from one who loses the client’s funds or even misses a disbursement deadline.

Essentially, Dahlin’s offense was commingling rather than misappropriation, as he never denied his clients access to their funds. The Supreme Court explained the distinction in Lawhorn v. State Bar (1987) 43 Cal.3d 1357—a matter matching Dahlin’s in seriousness—where, without depriving the client, respondent failed to keep client funds in trust. (Lawhorn’s offense was more severe than Dahlin’s in that a client was forced to complain to the state bar before Lawhorn released the funds, but on the other hand, Dahlin’s involved more money and two contemporaneous clients.) The Lawhorn court held, “We conclude that the case should be treated as one falling between wilful misappropriation and simple commingling.” Lawhorn was suspended for two years; so when the state bar initially agreed to suspend Dahlin for two years (a term Dahlin regards as fitting), it was agreeing with me on Dahlin’s degree of culpability.

The state bar initially treated Dahlin’s victimless transgression proportionately, but for reasons Dahlin never understood—and kanBARoo court will undertake to explain—the state bar escalated its punitiveness while it prosecuted Dahlin, who had initially reached an agreement with the bar prosecutor for a two-year suspension. When the bar assigned a new prosecutor to the case, Deputy Trial Counsel Oropeza, she disagreed with her predecessor, forcing Dahlin to accept a three-year suspension and stipulate misleadingly to facts implying he committed thievery. The forced confession, meanwhile, portrayed Dahlin so unfavorably that the judge rejected the plea agreement. The bar now sought disbarment, and Dahlin went from suspension for two years to rejection of his resignation with charges pending. The resignation route had been closed by a new rule requiring, if he was to exercise his erstwhile right to resign, a false confession the state bar could no longer extract. Forgone conclusion: Dahlin was “tried” and disbarred.

Even the bar court could understand that it had to justify the sentence’s severity, and it cited three California Supreme Court cases for its contention that disbarment is sometimes the appropriate punishment for a single act of misappropriation with mitigating factors. But Dahlin’s matter doesn’t come close.

The first case the bar court cited is In re Abbott (1977) 19 Cal.36 249, which the bar court summarized this way: “[T]aking of $29,500 showing of manic-depressive condition, prognosis uncertain.” The bar court omitted the small fact that Abbott had pleaded guilty to grand theft.

The second case cited by the California Bar is Chang v. State Bar (1989) 49 Cal.3d 114, which the bar court summarized, “An attorney misappropriated almost $7,900 from his law firm, coincident with his termination by that firm.” The full story. The attorney stole pretended legal fees from the trust fund, despite having assured the client that he provided the services as a courtesy.

The third cited case is Kaplan v. State Bar (1991) 52 Cal.3d 1067. The bar court’s prĂ©cis: “An attorney with slightly over 11 years of practice and no prior record of discipline was disbarred for misappropriating approximately $29,000 in law firm funds over an 8-month period.” The reality. Respondent deposited 24 checks into his personal bank account (one offense?) and didn't intend to restore the money, which paid for his father’s medical expenses.

Unlike Dahlin, these attorneys couldn’t repay their clients. In partial contrast, the Lawhorn client received payment, but only after a client filed a complaint with the Bar. Whereas in full contrast, Dahlin’s clients suffered no inconvenience in accessing deposited funds.

Why was Dahlin disbarred for an offense worth a two-year suspension? Next Installment will examine why the state bar punished Dahlin so severely.