Wednesday, January 26, 2011

87A Installment. Ohio bar: Collection agency for the banks—The Hassan Jonathan Griffin matter—Part 2. Should all lawyers be narrow-minded moralists?

2nd in Hassan Jonathan Griffin series

While the State of Ohio is inconsistently harsh on lawyers, in its pluto-moralism, Griffin's prudential detractors are psychologically clueless. They pronounce that Griffin's financial incompetence disqualifies him for the law, and his weakness and passivity disenable him from intervention for others. But aggressiveness when fighting for others' rights, meekness and conflict-avoidance when asserting their own—for example, acquiescing to state-bar "discipline"—is emblematic of attorneys' character.

As to financial skill,
numerous geniuses have handled their money unwisely, and a lawyer minority handles any; public defender Griffin doesn't. To insist Griffin's financial incompetence should disqualify him for all lawyerly endeavor forces a rigid and narrow template on bar admissions. (But we needn't go that far, as the Ohio bar neither sought nor obtained—besides Griffins failing scores on three state-bar exams—facts bearing on any skill.)

"Savvy businessman" as professional character template, with other narrow-minded attitudes, creates our non-diverse profession. When the state bars exclude candidate lawyers for want of financial skill and business shrewdness, they eliminate professional understanding of the plight of millions of debtor clients. Then, we're stuck with the likes of the Ohio Supreme Court justices, who consider debtors despicable shirkers of their "obligations."

Like the justices, we little understand hardship outside personal experience and much understand it within. A sympathetic rant by a co-editor of the blog Above the Law—the name expressing its mildly cynical anti-lawyerism—illustrates the point. Co-editor Elie Mystal voiced out-of-character sympathy because his suffering—no job prospects, no way to pay his student loan—is direr than Griffin's. When a friend queried how Elie, with his abysmal credit rating, could ever buy a house, Elie replied that landlords reluctantly take him as tenant. Personal experience shaped Elie's attitude toward school-loan debtors, but it touched only that narrow attitude. Since we sympathize with like ordeals, law needs broad diversity of experience, including poverty and debt.

Ethicist Brad Wendel, notably, opposed character and fitness clearances as early as 2007, when he decried them as irrelevant and obsolete, procedures debunked as "the fundamental error of attribution," the folly of explaining others' behavior—but not our own—as caused by stable character traits. Usually pressure of circumstance decides: typically, contrasting personalities behave the same in identical social contexts. The sagas of Elie Mystal and Hassan Jonathan Griffin instantiate the principle: their common "trait," planlessness, results from enduring the same raw deal.

Tuesday, January 18, 2011

87th Installment. Ohio bar: Collection agency for the banks—The Hassan Jonathan Griffin matter—Part 1. Business debts aren't moral obligations

Question: What official process is still more capricious than a state-bar prosecution? Answer: A bar character and fitness evaluation in the State of Ohio. The Ohio bar denied Hassan Jonathan Griffin’s application because he couldn’t formulate a plan to discharge his $200,000 debt, incurred to finance his education. In California, the vague and open-ended character-and-fitness criteria threaten applicants' due process rights. (See for example, Hightower v. State Bar (1983) 34 Cal.3d 150) But Ohio proves that specificity is no automatic remedy. Ohio law expressly includes a candidate's financial mismanagement as ground for disapproval. (Ohio Gov.Bar R. I(11)(D)(3).) Griffin isn't the first case of the Ohio bar serving as a collection agency. In re Application of Manayan (2004) 102 Ohio St. 3d 109, the candidate's tax arrears contributed to denial. (See also another Ohio tax arrears case, In re Application of Carr-Williams (1992), 63 Ohio St.3d 752.) Ohio is serious about attorneys' personal finances. (In re Application of Dickens (2005) 106 Ohio St.3d 128 [financial responsibility is “critically important for lawyers”]; In re Application of Manayan (2004) 102 Ohio St. 3d 109 [“we expect applicants for admission to the Ohio bar and bar members to scrupulously honor all financial commitments”].)

The state-bar courts may be the only venue where Ohio courts pretend indebtedness creates an "obligation." Outside the bar courts, Ohio judges follow the contemporary attitude toward breach of contract. Like all U.S. jurisdictions but with more fanfare, the Ohio courts refuse to treat breach of contract as a morally offensive disregard for obligations: they refuse punitive damages to express moral opprobrium for contract breach. Ohio courts can be heard to quote Justice Oliver Wendell Holmes, Jr., that “[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it--and nothing else." (Holmes, The Path of the Law (1897) 10 Harv.L.Rev. 457, 462.) Non-performance of a business contract doesn't create a moral obligation, and repayment of debt is a contractual performance like any other. A loan is one variety of business deal, and like other varieties, it creates no moral obligation to perform.

Also, those rare jurists favoring punitive damages for bad-faith repudiation of a contract would refuse to create a moral obligation from Griffin’s indebtedness. (See for example, Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 774 - 784 [Bird, J., dissenting and concurring].) These morally nuanced judges advocate evaluating the parties' expectations as influenced by the social mores governing the same and similar transactions, and the Ohio Supreme Court considered neither. It ignored the student loans burdening many young lawyers, who have no idea how to repay. It also ignored how the bank bailouts affected our ethical sensibilities. After banks incurred an unsustainable debt with no plan for repayment, no prosecutions or even ignominy followed. Not just the banks. American government indebtedness has shifted ethical sensibilities concerning repaying loans. Having a huge debt with no idea of how to repay it accurately describes today's U.S. government.

Even where the breach is in bad faith, Ohio law, like the laws of all U.S. jurisdictions, doesn't punish—only compensates—breach of contract. Like all U.S. states except a couple (including California), Ohio consistently took this stance long before the sea change in American ethical sensibilities. Griffin’s breach of his student loan agreement, an ordinary business contract, doesn't need sophisticated justification: Griffin was unable to pay his student loan for the best of reasons. A contract, as Justice Holmes held, is only a prediction; who can blame Griffin for failing to predict the near collapse of the U.S. economy, when few economists succeeded. Bad luck, not just for him but also his creditors, who gambled on a better business outlook.

Next Installment. Should all lawyers be narrow-minded moralists?

Friday, January 7, 2011

86th Installment. Florida State Bar enforces “political correctness”—the Mitchell and Mooney matters

In events many observers find unfathomable, the Florida State Bar disciplined two lawyers for trading e-mailed insults. What’s unfathomable to the observers is not, unfortunately, the Florida Bar’s disciplinary action but the attorneys’ conduct, whose frequency in general practice everyone underestimates. In this Installment, we’ll “fathom” both the Florida State Bar and its victims.

Comparing the severity of disciple imposed on each—10-day suspension for Kurt D. Mitchell but only a public reprimand for Nicholas F. Mooney—betrays its motive. What occurred between them is sometimes termed a “flame war”, an escalating exchange of insults, often attributed to the absence of the inhibitions direct contact would foster. The only significant difference between the two attorneys’ conduct consists in the political incorrectness of Mitchell’s mockery of Mooney’s handicapped offspring: While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces. Compare with Mooney’s strongest: Then check your children if they are even yours. Better check the garbage man that comes by your trailer to make sure they don't look like him.

To politically correct moralists, Mitchell’s comment, because it ridicules a specific “incorrect” human target, is tantamount to harming it. Moralistic political correctness habitually misidentifies the object of harm, and this confusion facilitates similar swindles, such as the practice of charging injury to client whenever the Bar is inconvenienced. Here, the Florida Bar took this justification full circle by shedding hypocritical crocodile tears for the attorneys’ clients.

The Florida Bar had no legal basis for this discipline. It invoked its freakish interpretation of “dishonesty,” an all-purpose charge when the state bar finds no chargeable offense or hungers to compound an existing charge. “Dishonesty” plays the same role in Florida as “moral turpitude” in California, and the verbiage reciting the state bar’s artless justification of this characterization is, expectedly, where the Bar sheds tears—because, you see, the clients expected diligent pursuit of their interests, instead of indulgence in such mischief! Harm to both attorneys’ opposed clients is almost inconceivable in adversarial settings, and the nonexistence of any proof of client harm proves clients are the Florida State Bar’s least worry. Both Mitchell and Mooney should appeal the culpability findings as a due-process deprivation, because of the absence of forewarning that insulting opposing counsel would constitute actionable “dishonesty,” a charge that, had it been applicable, would warrant much more severe discipline.

That’s due process under the Fifth Amendment (as applied to the states by the Fourteenth), but what about the First Amendment? Some less narrow-minded observers suggest that the Florida Bar punished Mitchell and Mooney for protected speech, but unfortunately, the U.S. Supreme Court refuses to afford First Amendment protection to invective; the doctrine of unprotected speech is why authoritarian “fighting words” laws pass muster. Although the fighting-words doctrine doesn’t apply when, as here, the parties utter them on their own property, the speech remains unprotected and targetable by profession codes.

The First Amendment protects rights beside speech. Commission of the supposed misconduct in the course of representing clients works in respondents’ favor if they proceed under the right to petition. Although the Florida Bar charged the two with dishonest conduct with clients, the charge prejudges their tactical effectiveness. Conceivably, the flaming was an effective strategy.

Relatively effective, that is. I wouldn't hire them, and their conduct illustrates a deep problem in the profession: incompetent, bullying attorneys. If this tactic was relatively successful, it was so because their repertoire contained no alternatives; attorneys incapable of legal sophistication resort to bullying, but intimidation requires that they can intimidate their opponents. With bullying the one tool in your box, you make do; at least you’re justifying your fees. It gets more interesting when two bully attorneys confront each other, because each, skills limited to bullying, can only escalate hostilities. If some 15% of attorneys belong to this genus, then maybe two or three percent of cases include similarly escalating affronts.

I little doubt Mitchell and Mooney are both bully attorneys, whose limitations damage the profession. Mitchell and Mooney showed that their conduct was tactical: although their insults escalated, they were never out of control. They stayed on the right side of the line as they understood it, never, for instance, using profanity or obscenity. Each—sharing the insults with coworkers and bosses—thought his conduct was proper. Was it? Yes and no: this case isn’t about incompetent, bully lawyers. The state bars don’t intend to address that problem, because state-bar prosecutors are of precisely this type.