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.