106th Installment. Lawyer dues—not penalties imposed on respondents—should fund disciplinary tribunals

California may be unique in unconstitutionally allowing its attorney guild to enforce its self-adjudicated costs as a judgment, but the universal state-bar practice of charging costs to respondents (regardless of how the state bars can collect them) derives from changes in the criminal law that, despite their legality, damage the system’s integrity: policies of victim restitution and social restitution. The critique of social-restitutionary state-bar costs begins with its prototype, victim restitution in criminal law, of which there has accumulated much more legal and societal experience.

Victim restitution in criminal law

The award of state-bar “costs” (in most jurisdictions) is sequel to the practice, itself growing out of victim restitution, of appropriating from criminal defendants an array of “imaginative fees.” (HT for phrase to Rosenthal and Weissman, below.) Wildly popular (despite its hollowness, where only 3% of restitution fines are paid), victim restitution led inexorably to charging convicted defendants for every manner of administrative expense (such as their room and board). If the criminal must make restitution to the designated victim, why shouldn’t he compensate society, too? Once the policy became acceptable, the rush to solve budgetary shortfalls by taxing criminal defendants became irresistible. (Former Chief Justice George in California promoted such fundraising.) The first wave started in the 1970s and culminated in the 1980s in the widespread use of restitution in an amount apportioned to the defendant’s means. The second wave occurred in the 1980s and 1990s, when full restitution widely became mandatory and numerous fees were imposed.

This was the Reaganite “victims’ rights” movement, which included other disruptions—such as victim-plight testimony during sentencing—of reasoned jurisprudence. “Victims’ rights” was largely a sop to victims outraged by plea bargaining, which flowered in the 1970s after the U.S. Supreme Court, in Brady v. United States (1970), legitimized it. Defendants were to be charged the costs of their crimes to their victims, who were also allowed to influence sentencing by diatribe.

Restitution and fees are lauded despite the lack of evidence of their rehabilitative effectiveness and their scorn for one of criminology’s established principles: crime is born of poverty. Eighty-five percent of criminal convicts are indigent. Restitution in criminal law purports to teach the lesson that criminals are personally responsible for their crimes, whereas, in fact, crime is fundamentally a product of social conditions. Society cannot teach criminals to accept rather than deny responsibility when, in the very process of this attempted indoctrination, society denies its own responsibility for causing crime.

Restitution expresses and reinforces the ideological denial of poverty’s fundamental role in crime. The fetishism of “personal responsibility” makes it easy to treat the primary victims of harsh economic inequalities as if they were the ones who should provide restitution. This ideological denial helps explain the tolerance of the American public for mass incarceration.

The availability of compensation for the victims of criminal acts is a form of social insurance. Restitution (3% recovery rate) is insufficient.

It is also socially unjust: victim restitution amounts to a highly regressive tax. This became completely obvious with the 1996 federal law (and similar measures in most jurisdictions, including Penal Code § 1202.4 in California), which required judges to order full restitution regardless of the criminal defendant’s ability to pay, but regressive taxation is inherent in restitution in criminal law, since the overwhelming majority of criminal defendants are indigent. If compensation for targets of crime were treated as a social-insurance issue (as is the European tendency), it would be funded through progressive taxation.

The ultra-individualist complexion of victim restitution helps state actors deny that the development of a sophisticated and nuanced law through courtroom contests is a public good. The numerous “imaginative fees” that the restitutionary mentality spawned amount to a tax on the litigation of criminal allegations. Although “victim rights” was a reaction to universalizing the plea bargain, it has served as its handmaiden by providing another incentive to settle criminal cases before the fees accumulate, at the expense of broadening the corpus of law on which a common-law system depends.

The state-bar ramifications of criminal law’s victim-restitution practices

The “imaginative fees” that restitution spawned in criminal law have been avidly adopted by the state bars, which routinely charge investigation, litigation, and court costs to respondents, including costs pertaining to counts eventuating in acquittal. These “costs” easily run to thousands of dollars, often to over ten thousand—a high price for bar counsel and bar-court judges’ incompetent legal work. They suffer all the demerits of criminal law’s restitution-inspired measures: denial of systemic causes of infractions, regressive taxation, and stunted development of law.

While Bar “costs” are like restitutionary fines in denying the primary role of the system in engendering offenses—whether crimes or ethics’ infractions—they differ in manner. The role of system in legal ethics is not so much to cause infractions but rather to self-servingly define them. (For example, over-prosecuting negligent misappropriation and violation of court orders while disregarding fraud by employers and the sacrifice of client interests to the judiciary’s interests.) Yet, the direct economic causes of ethical infractions shouldn’t be entirely ignored; notably, the state bars have failed to bring cases against law-school administrators who have deceived students about their prospects in law, helping create a cutthroat economic climate.

State Bar “disciplinary costs” fall as a regressive tax on those least able to pay. Indigence may not be an important cause of legal-ethics violations, but once their cases come to issue, many attorneys who face discipline charges are impoverished. The reason is that the filing of a notice of charges is public information, which almost invariably cripples a respondent’s law practice. Until their final hearing, respondents are presumed innocent, yet they are taxed with costs that deter them from upholding their innocence.

Even more than for criminal law, which has enjoyed a long evolution, the disincentive to litigate cases stymies the development of bar law. Bar law remains primitive because of the avoidance of real contention, and bar “costs” are an important mechanism for enforcing legal blandness. 

Conclusion

An attorney-discipline system (supposedly) serves the entire profession and, accordingly, should be funded by dues-paying lawyers.  As it most serves the most profitable law firms, an ideal bar would tax its members progressively—and certainly wouldn’t extort funds from beleaguered state-bar respondents.

Facts:

Dickman, M. "Should crime pay: A critical assessment of the Mandatory Victims Restitution Act of 1996." (2009) California Law Review, 97:6(4).

Rosenthal, A. and Weissman, M. “Sentencing for dollars: The financial consequences of a criminal conviction.” (2007)

105th Installment. Humiliated California State Bar tries to corrupt the Franchise Tax Board: The search for a sufficiently despicable debt collector

Reeling at exposure of its partnership with debt-collection thugs at Wakefield Associates, the California State Bar now overreaches by trying to fraudulently manipulate tax collection. Rather than, as before, delegating to gray-market criminals the collection of its fake trial, litigation, and investigation costs, the Bar will ask California’s tax collectors to hand over any refunds due these respondent “debtors.” This collection method is used for back taxes and judgments owed state agencies (Gov. Code, § 12419.5), but as the U.S. Supreme Court held, the California State Bar is not a government agency for the purpose of adjudicating members’ federal rights. (Keller v. State Bar of California (1990) 496 U.S. 1, 11.) By treating “costs” as an ordinary judgment owed California, the State Bar treats its unilateral claims for money owed as a real court-judgment’s equal, flagrantly violating lawyers’ federal right to due process.

The illegality of the State Bar’s collection methods can be clearly understood from two legal histories: 1) the changes in methods the Legislature has authorized for collection of the State Bar’s costs and 2) the State Bar’s previous attempt to misappropriate the prerogatives of a “government agency.”

Before 2004, the State Bar could recover costs from lawyers by only a single means: conditioning readmission on payment; but with the passage of Business and Professions Code section 6086.10, the State Bar unconstitutionally acquired the prerogative to enforce its claims through the courts without a real judgment—without even any process for its lawyer victims to contest the State Bar’s invoice. Why did these changes wait until 2004? Because there are decisive legal reasons to deny the State Bar use of coercive collection methods. To allow the State Bar to recover based on its own edict is to deny respondent lawyers their due-process right to an impartial tribunal: constitutionally, the State Bar can’t act as both a respondent’s opponent and as adjudicator of cost claims. (Nor can this role be filled by the California Supreme Court, since it functions as the State Bar’s boss, this role distinguished from its being the state court of last appeal.)

The State Bar’s overreaching raises the same question the U.S. Supreme Court answered in Keller, a case also illustrating how distant from the legal mainstream—how extremist—is the California Supreme Court when it comes to supporting the State Bar’s goonish methods: in Keller, the U.S. Supreme Court rejected the California Supreme Court’s decision unanimously. Keller invalidated the State Bar’s practice of shamelessly using members’ dues for political propaganda. Political use of tax dollars by state agencies is permitted, and the California Supreme Court had held that the State Bar was entitled to its political spending because California law terms it a state agency. (See Keller v. State Bar (1989) 47 Cal.3d 1152 [reversed].)

This false characterization was refuted by a three-member minority of California Supreme Court justices and a unanimous Supreme Court of the United States. The State Bar can be a “government agency” for some state-law purposes, but when members' federal rights are at issue, it should be treated as a private club. Its most important differences from a “government agency” are that the State Bar is run, not by the public, but by its members; and the State Bar is financed, not by taxes, but by members’ dues. Both the U.S. Supreme Court and the California high-court’s minority analogized the State Bar to a labor union. (I think the prohibition on political spending is unfortunate as applied to labor unions, but that’s another question.)

Now, take the labor-union analogy a step further. Imagine that a union tried to levy on debt it unilaterally claimed a union member owed. That’s what the State Bar (with the State Legislature’s connivance) proposes. A “judgment” for "reasonable costs" issued (as a blank check) by the Supreme Court in its Bar-supervisory capacity is as unconstitutional as was the State Bar’s political propaganda.

Interlude 27. California Supreme Court vs. Stephen R. Glass: A tale of competing hypocrisies

3rd in the Stephen R. Glass series.

Yesterday, the California Supreme Court heard oral argument on the case of Stephen Glass; comments by the justices raise the question: who—Glass or the Supreme Court—is more self-serving. As kanBARoo court confidently predicted, the court is determined to deny Glass admission, but instead of using the occasion to uphold the centrality of honesty with clients (and, analogously, with Glass's deceived readership), the justices stressed Glass's duty to judges. (Source: The Recorder, “Court Has No Happy Ending for Infamous Fabulist,” Nov. 6, 2013.)  Justice Joyce Kennard: "As an officer of the court, should we believe whatever you tell the court?… A judge by necessity would sometimes have to rely on the utterances of an officer of the court." The court also used the opportunity to revive the antidemocratic (and perhaps unconstitutional) tenet that “being admitted to practice law is a privilege.” (Justice Kathryn Werdeger.)

Rarely do we obtain this glimpse of the justices’ conception of legal ethics as fundamentally a tool serving judges.

The Supreme Court justices followed In re Gossage (2000) 23 Cal.4th 1080, which holds that a candidate for admission who has committed acts of moral turpitude must demonstrate his rehabilitation by "exemplary conduct." The California Supreme Court indeed takes seriously its "practicing law is a privilege" authoritarianism: the Gossage court held, "Unlike in disciplinary proceedings, where the State Bar must show that an already admitted attorney is unfit to practice law and deserves professional sanction, the burden rests upon the candidate for admission to prove his own moral fitness." 

The Gossage matter is instructive in revealing how the Supreme Court exploits no-brainer cases like the Glass matter to impose a special moralistic regime on lawyers, with strictures unrelated to the core values of legal ethics. Gossage, even more clearly (if possible) than Glass, was a psychopath: he was convicted of a brutal voluntary manslaughter; he forged documents and, over a period of years, engaged in larcenous deceit of his associates. Like Glass, he lied about his history even as he tried to demonstrate his reformation.Yet, the Gossage court took the opportunity to drag into the case the applicant's Vehicle Code violations, including his citation for not installing seat belts. The court also complained of his failure to attend the resulting traffic-court hearings. These infractions don't relate to ethical failings; the attention they receive reveals the court's sheer class bias (although the immediate targets were wealthy enough): working people in California often must try to evade payment of traffic tickets.

The Glass and Gossage matters both illustrate the California State Bar Court’s legal superficiality. In each case, the Bar Court was prepared to admit the applicants, due to its judges' flagrant impressionism. Favoring impressive character opinions, which psychopaths easily garner, they ignored facts. Also evident is that Judge Honn, among others, learned nothing from Gossage.

The same State Bar Court that is so impressed by high-status witnesses supporting dishonest applicants will be unimpressed by honest applicants (and respondents) who lack social connections. The Supreme Court won't correct those errors, far more numerous. This is the key takeaway from the Gossage and Glass matters.

104th Installment. State bars assault the First Amendment: The Paul K. Ogden Matter in Indiana

1. Muzzling lawyers under rule 8.2(a).

Judges in Indiana (and in most jurisdictions) are powerful elected public officials, who you would think are better equipped to defend themselves than are typical libellants. Then isn’t it curious that the ABA Model Rules of Professional Conduct, adopted by most jurisdictions (including Indiana), provides:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (Rule 8.2(a) Indiana Rules of Professional Conduct.)

Making statements you know are false (or with reckless disregard for their truth) is the essence of “moral turpitude,” the term California uses. The version of the moral-turpitude statute used by the ABA Model Rules (and Indiana’s Rules of Professional Conduct) is rule 8.4(c), prohibiting lawyers from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” There’s no ambiguity in rule 8.4(c) requiring restatement of its prohibition of lying as it specifically applies to one target. Are lies better when they target an ordinary citizen or the President of the United States than when they target judges? From any angle, this is preposterous.

The state bars’ justification for this expression of pro-judiciary bias is that “officers of the court” owe a special duty to help maintain the judicial system’s appearance of propriety and integrity: lawyers attacking judges unfairly could erode public confidence in the judiciary.

Inasmuch as judges—through the state supreme courts—ultimately control the state bars, it isn’t remarkable that the rules accord judges special privileges, but imposing a duty on lawyers to maintain a certain public view of the judiciary is flagrant viewpoint discrimination. The public has the right to form its own opinion. Judges don’t have a democratic right to stage-manage their approbation by lawyers!

You might wonder how repeating a rule in a more specific form strengthens it. Are judges really provided special protections against defamation by lawyers—or is the obeisance to judges manifest in rule 8.2 pro forma? Imposition of discipline is reasonable when a lawyer defames a judge (or any citizen), but the protection judges enjoy is special because of the way rule 8.2(a) is interpreted. To show how, I turn to the Paul K. Ogden Matter in Indiana.

2. Vindictive Indiana Disciplinary Commission recommends Paul K. Ogden's disbarment for well-founded allegations of corruption.

The Disciplinary Commission of the Indiana Supreme Court wants to suspend Ogden for a year with no automatic readmission—tantamount to disbarment—for his alleged violation of rule 8.2(a) in a response e-mail (to an opponent party in a concluded probate case). Ogden wrote that the judge was dishonest and should be subject to discipline for his mishandling of the case, its litigation having Bleak Housed the estate. The recipient informed the judge, who demanded an apology that Ogden, standing on his First Amendment rights, refused to tender. The judge complained to the Disciplinary Commission, which had its own reasons to prosecute Ogden, who had blogged to expose the Disciplinary Commission’s almost total failure to prosecute lawyers in middle- and large-sized law firms.

Under the First Amendment, when a party states an opinion that a judge (or any other party) is dishonest, the statement is not defamatory if the party states the factual grounds. The judge took issue with only two facts. Regarding the first, Ogden had claimed that the judge was a friend of a probate opponent’s family and that he had recused himself from another of their matters. The judge didn’t say this (crucial objective fact) was false, only that he could recall no such recusal; he denied he was a friend of the family (which is, apart from the recusal, potentially a matter of opinion). Ogden had received this information from his client, whom he had the right to believe (and who was probably telling the truth); the court files failed to provide the name of the judge who had been recused. No one knows for sure whether the accusation was true, but relating what a client has assured the lawyer is true is hardly reckless; more fundamentally, it hasn’t been shown false.

The judge denied the second factual allegation, which was that the judge had opened the case unsupervised, pointing out that he assumed the case after it was already open. But the judge had maintained the case as an unsupervised probate matter; how it was opened is immaterial. Ogden’s accusation was substantially true.

3. Rule 8.2(a) affords judges special protection at the expense of free speech.

The character of the evidence against Ogden shows how judges receive special protection under rule 8.2(a). If Ogden had been accused of dishonest behavior under rule 8.4, it would be clear that Ogden had been perfectly honest. He criticized the judge on terms he reasonably believed were accurate and were essentially accurate.

The Disciplinary Commission construes rule 8.2(a) not as an anti-turpitude provision but rather as a judicial shield against criticism. First, the state bars shift the burden of proof to the respondent. To prove you’re dishonest, one must prove you a liar; but to prove that you impugned the integrity of a judge falsely, the absence of contrary proof suffices. Second, the Disciplinary Commission proves moral turpitude under a subjective standard, whereas the state bars judge recklessness under rule 8.2(a) relative to what a lawyer “should know,” which isn’t a dishonesty test. You aren’t dishonest for what you don’t know: prior knowledge or recklessness must be shown affirmatively.

Because judges are public figures, the protection from criticism afforded them infringes the First Amendment rights of lawyers. While some jurisdictions place the burden of proof on the defamation defendant, who must prove truth as an affirmative defense, the Supreme Court of the United States holds that liability for defamation of a public figure (such as a judge) must include proof of falsehood.

Another requirement for actionable defamation of a public official is the subjective standard for recklessness. (Times v. Sullivan.)

Other than the ordinary speech that is any citizen’s right, the issue of regulating lawyer speech arises mainly in two contexts. Pending litigation, the subject of Gentile v. Nevada, is a special circumstance; but the recusal-motion context proves the folly in requiring that a lawyer prove every allegation he makes against a judge’s integrity. When you consider recusal motions, it becomes obvious that the attorney’s duty to represent parties is compromised by regulating attorney criticism of judges. How can an attorney represent a client who is convinced that a judge is corrupt if the attorney is subject to disbarment when a hearing officer doesn’t find the allegation substantiated?

In Matter of Dixon the Indiana Supreme Court tries to weasel out of this contradiction by adopting a more permissive standard for recusal motions, appreciating the lawyer’s duty to his client. But allowing exceptions concedes the whole argument. If lawyers are so influential that the judicial system can’t tolerate their attacks on judges, why is the system resilient when the location is a recusal motion, which is of public record (unlike Ogden’s personal e-mail)? And when the Indiana courts hold that criticism of judges must be treated more permissively for some motions, it’s implausible that stifling lawyers’ harsh criticism of judges doesn’t reduce their capacity to represent their clients in other venues (obvious example, discussion among lawyers that might lead to a recusal motion).

4. Disciplinary Commission charges ex parte communication with judge, another frivolous charge.

The Indiana Disciplinary Commission is troubling Ogden over another matter: he is charged with ex parte communication with a trial judge, although Ogden had no pending cases related to the communication, which concerned questions of law. Again the Disciplinary Commission tries to hamstring lawyers. No principle of legal ethics or, for that matter, no part of the Indiana Rules of Professional Conduct prohibits communication with judges about questions of law when no cases are pending. Again, this creates a special regime for lawyers, inasmuch as an ordinary citizen is allowed to write to a judge. To ground this charge, the Disciplinary Commission turned to Indiana’s code of judicial ethics, which commands that judges not receive ex parte communication concerning their cases. Whatever this provision means, it does not forbid lawyers from trying to communicate with a judge about the law like any ordinary citizen might. If Indiana regulates judicial conduct in strange ways, it’s not the lawyer’s duty to avoid unwittingly tempting judges astray.

5. Conclusion.

Transparently, rule 8.2(a) is the judiciary shielding itself from criticism by lawyers. The judiciary’s rationalization is that lawyers are especially influential, but this no way passes muster under the First Amendment. A judiciary that protects its reputation for integrity by silencing lawyer critics (such as Ogden) is one that doesn’t deserve a good reputation. Maintaining a false public image of the judiciary is not a legitimate state interest under the First Amendment.

Rule 8.2(a) is corrupt to the core. Ogden intends to file for certiorari to the U.S. Supreme Court, but SCOTUS is unlikely to hear the case; being that the issues are so straightforward under its First Amendment jurisprudence, the Court couldn’t avoid holding for Ogden. The justices of the Supreme Court are unlikely to break ranks with their state brethren on an issue that, as collateral effect, would decrease judges' status.

103rd Installment. California State Bar: Toady to the foreclosing banks

The California State Bar is extending its helping hand to the banks—not protecting consumers—by making it impossible for homeowners to retain a lawyer to resist foreclosure. The State Bar intervened in the mortgage crisis under new bank-instigated legislation (October 2009) making it illegal for lawyers to charge for mortgage-relief services until all contracted services had been completed. (Civ. Code, § 2944.7; Bus. & Prof. Code, § 6106.3.) The law itself has been enthusiastically promoted by the State Bar, which vociferously reported that in each of two years consumer complaints had risen from 1,000 to over 3,000.

It’s the fault of the State Bar—even more than the fault of the Legislature—that foreclosed homeowners can’t get lawyers, for these reasons: the State Bar failed to defend lawyers from unjust accusations and instead helped inflame anti-lawyer sentiment; the State Bar failed to use its discretion to enforce parts of the legislation; and the State Bar denied the law’s ambiguity.

1. The State Bar failed to defend California lawyers against slurs.

The State Bar publicly bewailed the extra consumer complaints and demonized the lawyers complained against, but the number convicted were a small percentage of complaints. It shrunk from the conclusion that the number of complaints mainly resulted not from the greed of lawyers but from the desperation of struggling homeowners. In desperate circumstances, some homeowners used threats of State Bar complaint as extortion against lawyers, a problem the State Bar never addresses.

2. The State Bar self-servingly abused its discretion to prosecute.

The State Bar recognizes its discretion to refrain from enforcing parts of the law, having closed all cases involving payment schedules while it had a backlog, prosecuting similar cases only when the backlog was resolved. The bar had better reasons to refrain from these prosecutions than the self-serving reduction of its backlog. First, legal precedent favored it, as the Bar had previously argued and a U.S. District Court held that the legislation doesn’t apply to all litigation. Second, bundling violations don’t constitute a violation of legal ethics but rather a violation of an administrative rule. The Legislature gave the Bar jurisdiction to discipline violations of the bundling provisions, but it also subjected violators to criminal penalties. Such technical prosecutions should be left to the criminal courts; they don’t bear on the lawyer’s ethical character.

3. The State Bar denied the law’s ambiguity.

In its published case law, the State Bar Review Department denied that the law was ambiguous—despite the contradicting interpretation the state bar’s chief prosecutor had himself urged in federal court and despite the law's patent ambiguity. (In the Matter of Swazi Taylor (2012 WL 5489045); the federal district court case is Duenas v. Brown [unreported].)

The law isn’t clear because the meaning of “each and every service the person contracted to perform or represented that he or she would perform” is ambiguous. (Civ. Code, § 2944.7, subd. (a)(1).) It does not unambiguously state that “unbundling” matters into separate contracts is illegal.

Conclusion

Only the banks benefit from preventing foreclosed homeowners from getting lawyers. Apart from the State Bar’s incompetence and the courts’ pro-bank favoritism (often eliminating every consideration other than “did you pay?”), there is the background moralistic bigotry of the whole national state-bar establishment against debtors.

kanBARoo court predicted the state bars would prevent lawyers from representing debtors against the banks, in State Bar Establishment: Pro Bono for the Banks:

As the economic depression deepens so does political oppression, as the police are the instrument forcing an adverse orderliness on the enraged and impoverished. When banks today mount a collections' offensive against the public that financed their rescue, what role will lawyers play in helping the poor and indebted resist the onslaught? None if the state bars, specialized branches of the police-prosecutor apparatus, have their way. In three jurisdictions, the state bars have already disbarred or denied admission to lawyers for carrying excessive debt. For the state bars, indebtedness is moral turpitude!

102nd Installment. The prosecutor/debt-collector complex

Installment 100, on California State Bar collusion with debt-collection thugs, concluded with this comment about its debt collector, Wakefield Associates:

Some other corrupt judicial organs must use Wakefield Associates’ services, and they succeed in deceiving the legally naïve into fearing that criminal justice is their pursuer. The business model of these gray-market criminals is otherwise inexplicable.

What an understatement! As I only recently discovered, the New York Times broke the scandal last January (reported online by Westword, “In 2013, debt collection is big business—really big,” by Denise Grollmus): district attorneys in more than 300 jurisdictions, including Los Angeles and New York, have privatized debt-collection prosecutions by farming out their power to punish writing bad checks.

Under contract with the district attorneys, illegal collection syndicates threaten citizens who’ve written a bad check—usually caused by ordinary carelessness and thus subject to only small civil penalties—with criminal prosecution if they don't pay to attend special financial-management classes run by the collector, who profits handsomely. The threats of prosecution are almost always empty, pure harassment, as the proportion of uncooperative threat recipients actually prosecuted by the DA is minuscule.

DAs contracting with these collection thugs commit disciplinable ethics' infractions that the state bars refuse to discipline: aiding and abetting the practice of law by nonlawyers and harassment. The DAs aid and abet illegal law practice because they even allow the collectors to use the official letterhead of the DAs' offices to issue their threats, and in practice, they even allow the collector to determine probable cause. (Credit to Ethics Alarms, “Prosecutor prosecute thyself,” on the illegal practice of law.) The DAs knowingly contract for the thugs to harass citizens. In California, Los Angeles and Riverside DAs employ Corrective Solutions, whose CEO, Mike Wilhelms, has made himself judgment proof by repeatedly declaring  bankruptcy and starting another collection racquet after losing lawsuits for harassment and unfair business practices under the Fair Debt Collection Act. (What irony!)  Most ethics codes proscribe harassment; in California, it falls under moral turpitude.

In Installment 85, I concluded that the California State Bar refrains from prosecuting prosecutorial misconduct because state-bar prosecutors themselves engage in rampant misconduct. There are additional  motives; for example, trial counsels' ambitions to graduate to become real prosecutors. State-bar prosecutors often aspire to be real prosecutors, and what chance would they have after prosecuting them? I discovered from the pattern of views on this blog that Melanie J. Lawrence is applying for a job with the DA's office in Brooklyn, New York, where she is licensed to practice. No doubt she scored points by denying the existence of prosecutorial misconduct, at conferences. But the big reason the California State Bar won't interfere with the with district attorneys’ outrageously illegal privatization of enforcement is that the California State Bar is up to its neck in gray-market crime with the collection thugs at Wakefield Associates.

101st Installment. Cases as secrets: A reply to Professor Richard Zitrin

2^nd in the Horace Hunter series.

Hypothetical: Law professor Robert Nirtiz, a scholar and civil-liberties crusader, wins a key First Amendment case in the Supreme Court of the United States. His client prefers a low profile. Should Professor Nirtiz be precluded from discussing this case?

The case is part of our political culture, and prohibiting a civil-liberties’ proponent from discussing a favorable case abridges freedom of political speech, a more fundamental principle than the ethical commandment to keep client secrets. The same principle applies to all cases, including those of Horace Hunter’s clients even if they were offended by Hunter’s blogging. Professor Richard Zitrin disagrees. (Guard your clients’ secrets.) Against the Virginia Supreme Court’s holding in the Horace Hunter Matter that the First Amendment prohibits gag rules on court proceedings, Zitrin writes, “A lawyer remains at all times a lawyer.” The noninsular alternative was outlined by the four-justice dissent in Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1054:

At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law. [Citations.] We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.

Unfortunately, the reach of state-bar ideology extended to the Gentile court’s majority.

Characteristic of the state-bar establishment’s bureaucratic reflex (or insularity, as Zitrin prefers to call it) is its elevation of bar law over constitutional law, as when the Office of the Chief Trial Counsel cites the State Bar Review Department against the California Supreme Court. Although Zitrin has criticized the California State Bar for being insular, his disagreement with the Virginia Supreme Court’s refusal to discipline Horace Hunter for blogging about his clients’ cases indicates that even the most sophisticated official California ethicists are prone to insular perspectives.

Official California ethicists have never understood that legal ethics, like all law, must evolve as decisional law. (Lack of this recognition is also the reason California lawyers accept the inaccessibility of a bar law reported only through the insular-system’s journal.) Law blogging demands that the law develop because until recently lawyers haven’t had the means to publicize their cases.

But before the advent of blogging, situations existed—such as our hypothetical—where the free-speech rights of an attorney are superior to the attorney’s duty of loyalty to client. The situations involve political speech. Whereas the distinction between political and commercial speech is probably unnecessary to support Hunter’s right to blog without encumbering disclaimers, it comes into its own in distinguishing the kinds of client secrets an attorney must keep, and these secrets belong mainly to two categories: secrets useful for the attorney’s commercial advantage and secrets disclosed carelessly in the course of representation. Disciplining either kind of disclosures regulates commercial speech, whether the commercial locus is in different commerce or the same commerce. The advent of blogging forces a clearer recognition that the duty to keep client secrets stops short of limiting a lawyer’s political speech.

kanBARoo court places loyalty to client at the pinnacle of legal ethics, but the marginal breach of loyalty involved in public discussion of a case doesn’t justify transgressing attorney rights to free political speech—although the rules should strive to reconcile the two to the greatest possible extent. The speech in question is indeed  a form of political speech particularly salutary for law just because of its partly commercial character: it illustrates through actual cases how the attorney’s political aims and legal skills are aligned to further a client’s interest. This is a form of self-promotion that is likely to be a better indicator of attorney competence, courage, and conscientiousness than the standard credentials attorneys often brag up on their web sites. The damage done to the loyalty ethic (even without rule changes) is minor because this isn’t an area where the client has a strong claim for loyalty. Except by contract, clients have no right to secret cases.

100th Installment. California State Bar Colludes with Gray-Market Criminals: Nefarious Collection Practices using “Wakefield Associates” on Bogus “Debt”

The State Bar’s collection practices

The California State Bar employs gray-market criminals, illegal collection thugs, to try to recover its unconscionable “costs” from respondents. These collection thugs try to harass respondents into paying the invented sums.

Collections are ineffectually federally regulated under the Fair Debt Collection Act, which makes it illegal to call people to annoy them. (§ 806, subd. 5 [“causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy … any person at the called number”].) The collector the California State Bar uses—Wakefield Associates, based in Colorado—is one of numerous illegal collections operations, which go unprosecuted because they systematically avoid pursuing supposed debtors in their home states. This is the key to recognizing them: legitimate collection is by writ of execution on a judgment, for which being based in a different state is disadvantageous. These thugs’ motto is “a call a day until you pay.” They will deny they are engaging in harassment, by refusing to admit the obvious: that harassment is the only conceivable definition for calling someone who makes it clear they want you to stop. 

To eliminate the interstate collections thugs would require more than the ineffectual Federal Trade Commission, charged with enforcing the Fair Debt Collection Act: the U.S. Justice Department would need to concern itself, but the Justice Department is fully occupied with providing legal cover for torture at Guantanamo and waging its war against adolescents using birth control.

Dealing with collection thugs

The gray-market collections operations obfuscate three basic legal principles, which suffice for anyone having to confront these criminals:

1. Collectors have rights no greater than their creditor principals.
2. Creditors have rights no greater than any other citizen.
3. No citizen can dictate what another says over the telephone, but anyone can (only) deny permission to phone.

From these principles, it follows that it suffices legally to tell a collector you don’t want to deal with it to compel it to stop calling. But then, collections thugs operate outside the law (their basis of existence consists of illegal practices: badgering weak, ignorant people into paying supposed debts). Realistically, much more is required to deter them: anyone who calls one of these criminals back a few times—or more—should be commended for performing a public service. (Legally, you can call these telephone tough guys back as many times as you like and say what you want: they can hardly complain of harassment—although they’ll threaten—since they initiated communication and insist on continuing it.)

Birds of a feather

Where is the California State Bar in prosecuting the attorneys who advise these gray-market criminals on how to avoid prosecution? The answer is that they aren’t to be seen, where the State Bar colludes with these criminal collections’ operations. The specific collection syndicate used by the California State Bar engages in the usual violations of local anti-harassment and federal statutes but goes a step further. The Fair Debt Collection Act requires that the collector disclose its identity to caller ID, but Wakefield Associates refuses. Even when it identifies itself orally, it refrains from revealing it’s a private collection company, deceptively identifying itself as “the judicial recovery unit.” Although I doubt they would fool any state-bar respondent, some other corrupt judicial organs must use Wakefield Associates’ services, and they succeed in deceiving the legally naïve into fearing that criminal justice is their pursuer. The business model of these gray-market criminals is otherwise inexplicable. For the California State Bar, thuggery is business as usual.

99th Installment. Defend law blogging: The Horace Hunter Matter in Virginia

Legal and factual background

In the 92^nd Installment, “The Ethics of Ghost Blogging,” kanBARoo court predicted that law bloggers would be vulnerable to repression by the state bars: “Until the legitimacy of blogs is officially recognized, the law menaces blogging attorneys.” The prediction was confirmed when the bar and courts of the Commonwealth of Virginia demanded that criminal-defense attorney Horace Hunter label his postings "Advertisement."

Hunter took an almost unprecedented approach to blogging. His postings were often about his own successful cases, and when the bar tried to discipline him for declining to label his blog “advertising,” he blogged his own discipline case, a strategy pioneered by kanBARoo court in 2007. Like me, Hunter combined political and commercial motives. I blogged about the incompetence of the California State Bar and presented my views on legal ethics, with the purpose of both exposing the state-bar establishment and promoting myself as a ghostwriter for attorney respondents. Hunter presents a political critique of popular attitudes toward criminal defendants and rebuts the “guilty until proven innocent” mentality through examples drawn from his practice, showing how his experiences support his positions and how his attitudes and legal prowess make him an effective instrument for achieving those goals.

U.S. Constitutional issues

Horace Hunter’s case is on writ of certiorari to the Supreme Court of the United States, which has never ruled on the protections owed hybrid commercial and political speech, but integration between the political and commercial should require extending full protection to hybrids. The Virginia courts ignored the integration between the commercial and political in Hunter’s blog, instead weighing the political and commercial as separate, unrelated features. An example is the weight the court accorded the absence of the opportunity for readers to comment on Hunter’s blog and the blog's access through a link at a commercial web page, incidental features unrelated to the degree of integration of commercial and political content.

Hunter’s blog deserves the full protection of political speech because he integrated the commercial and political. Because his blog has been deemed essentially commercial, the bar claims the right to impose limited restraints if without them the blog is potentially deceptive. But the risk of deception is speculative. The Virginia bar hasn’t demonstrated the risk: it has produced no instances where anyone has been deceived, and it hasn’t been shown generally that contemporary U.S. citizens confuse honest accounts of attorney success with a guarantee. Labeling such postings as advertisements, as Virginia requires, or disclaiming warranty of results, as California might require, is probably unnecessary even in truly commercial messages, and the bars should bear the burden of performing the studies proving the necessity.

Consumer interests

Substantive law blogs could become a boon to consumers. The regulatory agency should encourage them even when they’re purely commercial because consumers have a dearth of good means to evaluate lawyers; blogs can highlight skills in analysis and communication. Who benefits from curtailing legal blogs? Only big law and other established attorneys, whose interests the state bars cater to. But when the political and commercial are integrated, as with Hunter’s blog, The week in Richmond criminal defense, and as with kanBARoo court, treating the blogs as commercial denies ordinary lawyers and other ordinary citizens—who must also make a living—the realistic opportunity to pursue their political ends.

The bar-establishment’s reply is that disclaimers don’t interfere with the message, but lawyers should know enough about writing to realize that surplusage misleads, by miscuing the reader. When a posting is labeled “advertisement,” readers will assume that the usual standards governing commercial advertising—such as permitting puffery—govern. When a posting is accompanied by a disclaimer of guarantee of results, readers will assume that claims regarding successful outcomes are the gist of the message and disregard the rest. (Even the common disclaimer, “This is not legal advice,” too often invoked defensively, will lead readers to think the content is unreliable when, as is often the case, the disclaimer is applied needlessly to matter obviously not legal advice.)

Caveat on client confidentiality

Since Hunter demonstrated substantial courage beyond the lawyerly norm by defying the bar, I criticize him reluctantly, but one aspect of the case gives cause for unease. Hunter didn’t request approval from clients for posting documents containing their names, breaching the ethical principle that attorneys must protect information obtained in the course of representation, even if it could be obtained by other means. The bar charged him with violating the client-confidentiality rule, but the Virginia Supreme Court held in Hunter’s favor, ruling that the First Amendment prohibits restrictions on disseminating judicial documents. The issue is important because it potentially strikes at the heart of attorney ethics: loyalty to clients; one former client complained.

The courts’ refusal to discipline Hunter for breach of confidentiality was correct on existing law, but were the state-bar establishment more sagacious, it could protect the loyalty-based core of the attorney-client relationship without breaching attorneys' First Amendment rights. Free flow of information is often restricted by contract without offending the First Amendment when parties agree to nondisclosure. Use of identifying client information without consent should be prohibited by a clause implied into every retainer agreement as the default. Then attorneys’ First Amendment rights are uncompromised because lawyer and client remain free to contract to allow disclosure.

Sources:
Horace Hunter v. Virginia State Bar
The week in Richmond criminal defense by Horace Hunter
Viewpoint: Court Struggles to Regulate Attorney Blogging by Richard Zitrin

Interlude 26. At ABA Conference, California State Bar prosecutor Melanie J. Lawrence—notorious felon—denies the existence of prosecutorial misconduct

Prosecutorial misconduct has become so rampant in the U.S. that official ethicists recognize a problem of state-bar failure to prosecute prosecutors. kanBARoo court 85th Installment, California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence, concluded that state bars fail to prosecute prosecutors because state-bar prosecutors themselves commit rampant misconduct. A conclave of official ethicists and state-bar enforcers in Chicago last August illuminated the problem, first through the insights of academician Ellen Yaroshefsky of Cardozo Law and functionary Maureen E. Mulvenna of the Illinois state-bar establishment; second, from the example in their midst, Melanie J. Lawrence, representing the California State Bar. (Hat Tip: Helen W. Gunnarsson.)

Yaroshefsky explained research findings: winning outweighs legality when moralism convulses prosecutors once they convince themselves of the defendant's guilt.

Mulvenna described a case, In re Howes (D.C. 2012) 39 A.3d 1, which exposes the depth of state-bar complicity in prosecutorial misconduct. Prosecutor Howes bribed inmate witnesses to appear, by illegally dispersing witness-voucher funds. Howes then lied to the court to conceal the influence and embezzlement. Shockingly, half of the hearing panel favored a mere suspension, some members recommending duration as short as one year, on the ground that the prosecutor acted for meritorious reasons: convicting a guilty defendant.

One dissenter denied the problem: Lawrence—a functional illiterate in the law—with emblematic California State Bar unearned arrogance and condescension, lectured the academicians to “go and read the reports for yourself.” Lawrence’s denial is not the result of naivete. Lawrence knows the California State Bar ignores prosecutorial misconduct, because she perpetrated proven misconduct in full view of the State Bar and not only got away with it but was twice promoted. (See also: 14th Installment, Turning Point, including Comments;15th Installment, PREDICT the Court's Ruling; and 22nd Installment, Can you tell victory from defeat?) Delegating Lawrence to opine on prosecutorial misconduct further ratifies hers and proves the problem the California State Bar dispatched Lawrence to Chicago to deny. 

98th Installment. The California State Bar seeks new oppressive pleading allowances—and the defense bar pretends to object

The official California State Bar “defense bar” bemoans the recently proposed formal curtailments of respondents’ right to explicit prosecutorial pleading, but in practice the bar court long ago abandoned its formal pleading rules. (State Bar Rules of Procedure, rules 101(b)(2) & (3).)  The defense establishment doesn't know because for years the official bar-defense attorneys have allowed prosecutors license in their vague charging allegations. Let any State Bar defense attorney name a case where they filed a motion to dismiss because the allegations failed by standards the Supreme Court repeatedly demanded that pleadings disclose not just the violated rule and the violating conduct but the manner in which the conduct violates the rule. (See Baker v. State Bar (1989) 49 Cal.3d 804 and predecessor cases.)

The bar court effectively repealed the pleading requirements because the bar-defense establishment had ceased raising them after the California Supreme Court tired of repeating itself and then drifted to authoritarianism. Granting prosecutors license has become part of the defense establishment’s grand bargain: preferential treatment for not rocking the boat. Because of its inexperience with real cases—those made real by challenging the State Bar’s central allegations rather than quibbling for a better bargain—the defense bar can’t even say what’s wrong with the expansion of the state bar’s pleading powers. The State Bar’s Chief Trial Attorney argues that it can restrict the rights of respondents to the bare necessities of notice pleading as practiced in criminal law, and the defense bar responds that this exemplifies the trend toward fewer respondent rights: “Brick by brick, procedural protections for  respondents in the discipline system are being dismantled.” But noticing a trend doesn't even rise to the level of counter-argument; it may even help justify. Noting a trend is the best the defense bar can do when it tries to muster an argument: no wonder it never dared argue for dismissal based on inadequate pleading!

Yet the argument that the new pleading rules are oppressive and illegal is straightforward. The Notice of Disciplinary Charges differs from criminal charges in the crucial respect that the answering party must affirm or deny each of the facts the State Bar pleads. The NDC isn’t just a pleading tool; it rolls pleading and discovery functions into one procedure. To require no connection between fact and charge violates respondents’ right to privacy under the California constitution by inviting arbitrary fishing expeditions. Even more importantly, to require answers to loaded questions, a State Bar norm, violates due process.                                

97th Installment. Wisconsin Bar Equates Clients with Business Partners

Attorneys have a qualitatively greater ethical duty to their clients than to their firms because the agency relationship between attorney and client is essential to law practice, whereas the relationship between attorney and firm is a business incidental. The courts of the State of Wisconsin disagreed, citing the principle that they’re ethically equivalent to justify attorney Matthew C. Siderits’s severe one-year suspension. "We have stated on prior occasions that a lawyer's misappropriation of funds belonging to a law firm where that lawyer is employed is to be treated no differently than misappropriation of funds belonging to the lawyer's client." (In re Siderits (Wis., Jan. 4, 2013).) Are sharp business practices with one’s partners the legal-ethical equivalent of stealing from your clients? That’s what the Wisconsin courts have repeatedly stated, but the Siderits decision—too severe for the presented conduct but far too mild for fraud against clients—shows that Wisconsin’s Office of Lawyer Regulation and Supreme Court know that the equation doesn’t hold; the rhetoric is for stiffening penalties to enforce law-firm labor discipline and shifting recovery costs from the firm to its employees.

Attorney Siderits was a recently promoted law-firm shareholder who allegedly cheated on his firm’s bonus policy by submitting several inflated bills, which he reduced before the clients were invoiced. Each of the two years, Siderits obtained a bonus of about $25,000 that he allegedly would not have obtained had he reported his billings accurately. Despite returning the bonuses, Siderits was terminated by the firm.

Equating dishonesty with clients and business associates wasn’t always the rule in Wisconsin, where the courts announced the new policy in In re Casey (1993) 174 Wis.2d 341, in which the attorney nevertheless received the traditional lesser suspension lasting 60 days. The Wisconsin Supreme Court has been clear that disbarment is warranted when an attorney steals from his clients. Taking money belonging to a client for oneself "warrants the most severe discipline—license revocation." (In re Wright (1994) 180 Wis.2d 492, 493.) But even in its zeal to defend the interests of major partners, the court imposed discipline much less severe than if Siderits had stolen funds from a client trust account.

Although the Wisconsin bar hasn’t succeeded in its drive to equate offenses against clients with those against business partners, we’re left with the question of why it’s pushing that envelope. Who benefits? The answer, the major partners in the large law firms, who can use free bar discipline in place of expensive civil suits. The state bars impose the heavy financial costs of discipline on the respondent. The threat of discipline secured the return of the bonus money without cost to the firm. The firm, which could have sought punitive damages under Wisconsin law, otherwise might have had to sue Siderits on its own dime. (Wisconsin Stat. § 895.043, subd. (3); Berner Cheese Corporation v. Krug (2008) 312 Wis.2d 251 [plaintiff may receive punitive damages for defendant's breach of fiduciary duty if defendant acted maliciously toward plaintiff or with intentional disregard of plaintiff's rights].)