Saturday, December 6, 2014

110th Installment. The judicially unconstrained California State Bar: The Marilyn S. Scheer Matter

Review petitions filed by State Bar respondents must be considered by the California Supreme Court, that being the only form of review by any court of record, as required by the 5th and 14th Amendments for deprivation of a property right. The California Supreme Court last granted a respondent’s petition for writ of review 14 years ago. If the California Supreme Court fails even to consider review petitions, there’s created a federal question. 

Marilyn Scheer has a petition for writ of certiorari before the U.S. Supreme Court and a 1983 action on appeal before the 9th Circuit. She argues, among other meritorious contentions, that it defies credibility that over 14 years and hundreds of petitions, the State Bar Court has committed not a single reversible error. She concludes that the federal courts should overturn In re Rose (2000) 22 Cal.4th 430, which established the Supreme Court’s absolute discretion to deny formal review, that process alone compelling the court to issue a written opinion. 

While the facts overwhelmingly point to the absence of judicial oversight and the deprivation of federal due process for California State Bar respondents, Scheer’s case is no assured win. When the California Supreme Court rubber stamps a Review Department decision by denying a respondent’s petition for writ of review, it certifies that it has given the petition its conscientious consideration. For any federal court to conclude that California’s high court hasn’t actually even considered the rejected petitions is to accuse the justices of dishonesty. The federal courts will be reluctant to level, for the sake of California State Bar respondents, an accusation of that moral magnitude against their California brethren.

Still, Scheer’s argument, based on 14 years without review, is powerful. Meanwhile, the California Supreme Court’s position is so facially untenable as to require that we explain how it got in this legal predicament. Wouldn’t it be worth the Supreme Court’s time to take at least a single case during the whole 14-year period following In re Rose?

No, it probably would not. I’ve shown that in its dealing with the State Bar, the politician judges on California’s Supreme Court are concerned only with managing the court’s public image. There’s no good PR in absolving lawyers.

I’ve long maintained that the California State Bar is not fundamentally worse than the state bars throughout America. In the licensing and discipline of lawyers, there’s no serious policy federalism or even islands of competence. But in the de facto absence of any judicial review, California stands alone. This must weigh in Scheer’s favor in federal court.

Saturday, November 15, 2014

Interlude 28. Should cops be permitted to join the bar?

[Based on Authorized police prevarication as a clue to the nature of the state.]

Acts of deceit, including those committed outside of the practice of law, prove a bar-candidate’s moral unfitness. (The Stephen R. Glass matter illustrates the point.) How does the state-bar establishment approach officially legitimate occupations that require that their practitioners routinely engage in acts of deceit? A nice theoretical question, you may say, but surely, no civilized society classifies occupations as “legitimate” when they require acts of moral turpitude. It's practically a self-contradiction.

But one occupation is freely permitted entry to the state bars despite having deceit at the core of its real job description: the police. American cops enjoy a license to lie both to the public and to suspects, interrogations included. Not only do they have this license, but their style of work depends on deceit. No cop can refuse on principle to resort to treachery, even against random members of the public, if at stake is a potential conviction.

Cops will retort that their deceit is socially useful. But so will many others who commit acts of moral turpitude!

Cops (and former cops) don’t belong in the bar, and their admission is the ultimate state-bar hypocrisy.  

Friday, May 2, 2014

109th Installment. How vindictive is the state-bar establishment?—Clues from Indiana’s Ogden matter and the avaricious designs of the California State Bar

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

New developments in the Paul Ogden Matter

The vindictiveness of the state bars is revealed only when lawyers criticize them, which—due to this very vindictiveness—happens rarely. If lawyers withhold criticism because they fear the State Bars, how can opponents prove the ordinarily silent constraint on criticism: state-bar retaliation? We must rely on courageous lawyers like Paul Ogden to take the brunt of state-bar oppression. Even the original charges against Ogden, formally acts of retaliation on behalf of a corrupt judge, substantively were retaliation for Ogden’s public criticism of Indiana’s Disciplinary Commission (D.C.) when he demonstrated the D.C.’s big-law bias, the charges having immediately followed the criticism ten months after Ogden’s (private) criticism of the judge. Recent developments in the Ogden matter definitively prove D.C. retaliation. The D.C. is acting with impunity in pursuing clear vengeance for itself by serving Ogden with another charge, the illegality blatant.

Behind the new charge is a dramatic story: because of the uncriticizable incompetence of the Indiana judiciary, a party to a family-law matter suffered 14 bullets. The victim had asked Ogden to represent her in filing a legal document removing a family-law court judge, who failed to rule on a motion within Indiana’s three-month deadline. Ogden couldn’t undertake the prospective client’s representation because of conflict of interest, this being the same judge who had complained against him, alleging ex parte communication in Ogden’s already pending D.C. matter. He provided informal assistance, the “lazy-judge praecipe” was filed and should have compelled reassignment. However, the scoundrel of a judge had his clerk delay formal receipt of the praecipe to pretend to have ruled, and the ruling was harsh and retaliatory against the woman, encouraging the other party in his murderous appetites and denying the eventual victim writ protection.

That the judge had manipulated the filing times isn’t speculation; even the Indiana Supreme Court agreed and reassigned the case. But what about the invalid order? The Indiana Supreme Court completely neglected that issue. Ogden blogged this, for which he was charged with … disclosing confidential information. 

You needn’t be a lawyer, only listen to the daily news, to know that client wishes govern disclosure, and the severely wounded victim actually confirmed from her hospital bed that she wanted the case publicized. (See Indiana Rules of Professional Conduct, rule 1.6.) Yet, without even confirming them, the D.C. brought charges for breach of client confidentiality—utterly ridiculous but, apparently, the best it could manage.

California implications

The State Bars across the country are far more similar than different. Even though California has distinct rules (which it is moving to conform still more to the national standard), Bar practices are everywhere much the same. The “laboratory of the states” is sacrificed, but the uniformity lets lawyers generalize across jurisdictional lines, important where dispositive evidence of bar retaliation is, by nature, hard to acquire. (As I wrote in Installment 22, there was a probable element of retaliation in my Bar case in 2007, but the evidence is much stronger in Ogden.)

California lawyers should worry more about retaliatory State Bar practices after Ogden. The awareness that the state-bar establishment is a vindictive claque is particularly important now, since the California Bar is trying to expand its jurisdiction: it lobbies for the right to punish nonmembers—and to retain the fines it proposes to obtain—for the unauthorized practice of law. (HT Kafkaesq.) The California Bar complains its jurisdiction must expand because the Justice Department is reluctant to prosecute (what the Bar considers) unlawful practice. For at least the third time, the California State Bar fraudulently asserts the prerogatives of a state agency.

The California Bar proposes to apply the same biased fee system, wherein respondent pays attorney fees if it loses but the Bar never pays anything. This will no doubt serve as a tool of vengeance against former attorneys incurring the sadistic rage that the state-bar establishment harbors for all principled opponents.

Monday, February 17, 2014

108th Installment. Three strikes against the California Supreme Court: Forsaking standards of candor for the sake of political correctness

Comparing the cases

Many conclusions are obvious from the three January 2014 State Bar cases reviewed by the California Supreme Court; but they were obvious years ago. Among them: the Supreme Court doesn’t review cases to reverse convictions, and the Supreme Court is supremely concerned with managing its status and manipulating its public image. But some new trends do present, so I won’t belabor the obvious. The most important and unexpected trend is the Supreme Court’s refraining—in each of the three cases, Garcia, Grant, and Glass—from inferring moral turpitude from deficient candor during the hearings themselves.

A related trend: the prevalent defense in California State Bar moral-turpitude matters may seem to be “My lawyer said it was OK.” At least that’s so if we generalize from the three decisions. Although the recipients were, in all cases, trained lawyers, they, in each, blamed bad legal advice for their egregious conduct (Glass and Garcia) or false confession (Grant). The court never generalized (or even noted) the issue of whether lawyers can rely on counsel for their ethics; how could it, when no consistent policy can be extracted from the results, the court’s placing considerable weight on the excuse, in one case, and discounting it, in the others. The court’s doctrinal evasion and inconsistency reveals, nonetheless, a tenacious purpose: increasing its liberty to make political decisions (without inconvenient ethical considerations) and increasing its opportunity to issue “politically correct” dicta. In each case, the court should have found moral turpitude based on the candidate or respondent’s conduct in the hearing process itself. The court refrained from repudiating the lawyer-blame theory, to avoid either deciding against the candidate (Garcia) or sacrificing opportunity to expound its politicized dicta (Grant and Glass). The court (expressly in Garcia, tacitly in Grant and Glass), allowed the lawyer-blame defense to excuse lack of candor.

A final point for comparing the cases is the inconsistent role of character witnesses, who are taken very seriously in Garcia and given no apparent weight in Grant or (ultimately) in Glass.

In re Garcia

The most flagrant acceptance of the blame-the-lawyer excuse was in Garcia, the candidate who is an illegal immigrant. After living in Mexico for eight years, Garcia returned to the United States (where he had previously been brought illegally) in search of employment. Garcia landed the job that got him started toward respectability by lying about his immigration status, but he avoided the bar-examiners' questions about the job application by claiming his memory of the events was hazy. (Who could fail to remember obtaining their first employment under conditions of illegality?) He subsequently checked with the former employer to determine whether a record of the application endured, and on finding it did, he supplied a copy to his attorney, who advised him to withhold the information. Two weeks later, Garcia’s attorney had (for reasons unremarked) a change of heart, and he disclosed the evidence. The court should have denied Garcia admission for this flagrant lack of candor.

But the Garcia case was a political event, staged by the entire California establishment. If you’re chafing at the bit to give illegal immigrants citizenship, it’s inconvenient to admit that their unlawful presence is inconsistent with their practicing the best ethics. Garcia was a heavily networked test case for open-borders jurisprudence; he even had a pro bono lawyer (the one who supposedly provided the bad advice and who apparently isn’t being targeted for discipline for advising the candidate to suppress evidence).

By disregarding Garcia's turpitudinous lack of candor as well as ignoring its implications for the credibility of his other claims, the court could focus on subjective interpretation. The opinion apprises readers that the Bar had conducted a very thorough investigation; then, why hadn't the investigation uncovered Garcia’s deceitful application? The opinion extols Garcia’s character references, such as his law professors, who testified to his sterling moral character; but what does a night-school law professor learn of a student’s moral character? With a networked candidate like Garcia, character witnesses are inevitably favorable; they should be discounted accordingly—especially when the court is presented with immediate evidence of the candidate’s lack of candor.

In re Grant

Before the Supreme Court reversed, the Review Department had found a failure of proof that Grant knew child pornography was saved to his computer, despite Grant's pleading guilty to possessing it knowingly. Grant explained that he had erred in his plea: he—and his lawyer—had believed that the offended statute equated bare possession with knowing possession. The excuse is preposterous.

The Grant court downplayed Grant’s disingenuousness because condemning deceptiveness isn’t as opportune as espousing political correctness. The court expatiated on how possessing child porn demonstrated moral turpitude, to twist the meaning of that term, disassociating it from fitness to practice law.

The court’s arguments, the standard fare on the subject, are worth rehearsing because the court evidently believed saying it important. The court denied that possessing child porn is a victimless crime because the porn industry (like any industry) is driven by a market; but being part of an abstract “market” doesn’t constitute a proximate cause for the production of pornography. The court added the second standard argument: possessing porn perpetuates the child’s degradation. This invokes an artificial harm that doesn’t bear on the child’s actual well-being. To prescribe that the consumer of child porn is guilty of bestowing market share and perpetuating degradation is, essentially, to create a thought crime: the same logic applies regardless of the existence of a physical representation. If the user trashes the images, should he not be prosecuted if he doesn’t take measures to forget them? The creation of these purely mental images is the end goal of the pornography industry, but that never justifies punishing the mere consumption of information. (Moreover, how can you ban a practice in a democracy and prohibit citizens from exploring the object of the ban?)

Laws against consuming images (or texts) are blatantly unconstitutional. As Justice Brennan wrote in dissent in the case that, regrettably, validated child-porn-possession laws, Osborne v. Ohio (1990) 495 U.S. 103 [quoting Stanley v. Georgia (1969) 394 U.S. 557]: 
If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.
Although the California Supreme Court’s decision was predictable, to conclude that possessing child porn is moral turpitude takes a step further than its simple criminalization. The Osborne court’s mistake was to apply an ordinary balancing test (rather than a clear-and-present-danger test) to a core First Amendment right. The California Supreme Court turned the policy decision into a moral manifesto, one corresponding to the current politically correct California orthodoxy.

Grant produced character witnesses, all the more impressive because of his own status as a “registered sex offender”; the court downplayed their significance.

In re Glass

Glass, of course, never had a chance, public image having become the overriding purpose of character-and-fitness evaluations. From what planet hails an observer who thinks the Supreme Court will permit the world to joke that Glass was too dishonest to be a journalist—but is fine as a lawyer? Glass showed remarkable lack of candor about the extent of his cooperation in disclosing his falsehoods, blaming his failure to make full disclosure on, whom else, his lawyer. Glass did worse than claim that he delegated to that attorney performance of his promises about the clean-up effort: he misrepresented his (purported) acts of delegation as his personal compliance. Glass had also failed to reveal many of his lies when he applied to the Bar in New York.

But denying Glass admission for lack of candor doesn’t appeal to the demagogic temperament of California’s Supreme Court justices. Why waste an opportunity on mundane defects of character when there are grave matters of political incorrectness to denounce? By paying scant regard to Glass’s lies to the court, the court expanded its opportunity to incite political sentiment. It exposed Glass as a racist, some of his published lies having put blacks in a disagreeable light! The court again created a thought crime—the objectionable racist motive—with which it compounds Glass’s bare perfidy to his readers, much in the manner of hate-crime laws, which are also obviously unconstitutional. The court implies that those with Glass’s views on race are unfit to practice law.

Glass’s character witnesses had been worshiped by Judge Honn in the Hearing Department, but they were often disdained by the Supreme Court. (But some of Glass’s character witnesses were undeservedly respected, such as his psychiatrist, who offered an optimistic prognosis completely at odds with the evident reality.) Some of their comments truly discredited these witnesses. A Georgetown University law professor couldn't grasp the propriety of inquiry into Glass’s having claimed credit, on his law-school application, for journalistic awards that Glass garnered by means of fraud; the professor became indignant. But while the fact is relevant that Glass’s very standing for bar admission depends on his lies in getting accepted to law school, the point could also be made (but wasn't) that Garcia, too, got his start through an act of undeniable moral turpitude.

The Glass court refrained from drawing conclusions about the trustworthiness of orchestrated character references.

In its pretended supervision of the State Bar, the California Supreme Court is concerned only with its own posturing, now expressed in a strident political correctness, which has become so important to the Supreme Court that, for the sake of its expression, the court will downplay even candidates or respondents' lack of candor, letting their lawyers assume blameless responsibility.

Sunday, January 26, 2014

107th Installment. Is being an unlawful immigrant moral turpitude? — California’s Sergio C. Garcia matter

Plutocratic open-borderism contended only with authoritarian law-and-orderism when California’s supreme court—the first in the United States—decided to admit an illegal immigrant. (See In re Sergio C. Garcia (2014) _ Cal.4th _.) The Supreme Court parroted the open-immigration line of California’s economic and political elites; the only opposition, an amicus brief by a former State Bar prosecutor, reflexively counterpunched that a lawyer must obey all laws. Both avoided serious ethical analysis, pandering to politics.

The Garcia court’s moral-turpitude analysis of illegal presence was cursory. The seminal case delimiting the moral-turpitude standard had exonerated candidate Hallinan of bad moral character by exempting two categories of alleged wrongdoing: Hallinan had participated in civil disobedience supporting the civil-rights movement, and he had been in various physical scrapes. (See Hallinan v. Committee of Bar Examiners of State Bar (1966) 65 Cal.2d 447.) These categories correspond to the main instances of serious illegal conduct deemed, in California and most jurisdictions, not to constitute moral turpitude: disobedience to the law for idealistic reasons and “intemperate resort to fisticuffs.” (See, also, Schware v. Board of Bar Examiners (1957) 353 U.S. 232.)

To excusable idealism and volatile conduct, the Hallinan court contrasted five offenses that always demonstrate moral turpitude: fraud, perjury, theft, embezzlement, and bribery. Their commonality is that they bear on “the individual's manifest dishonesty.” The Hallinan court had enumerated the five offenses to provide basis for analogy, but the Garcia court merely noted that illegal immigration isn’t on the list, and (having sufficient sense not to analogize to civil-rights activism) the court analogized Garcia’s illegal presence to Hallinan’s fisticuffs. Had the Garcia court followed the Hallinan court in explicitly characterizing “fraud, perjury, theft, embezzlement, and bribery” as offenses involving dishonesty, it could not easily reach its conclusion that illegal immigration does not constitute moral turpitude.

The Garcia court didn’t analytically compare illegal immigration to crimes of a “fraudulent nature,” on the one hand, or, on the other hand, to idealistic transgressions or to acts showing “a quarrelsome disposition” and “a hasty and ungoverned temper.” (Hallinan, supra, at p. 472.) Had it made the comparison, it would be obvious that illegal presence does not resemble brawling and does resemble theft: both illegal immigration and theft involve illegal appropriation of resources. Violating immigration laws isn’t victimless, since these laws are resource restricting. An example of how immigration laws restrict resources is afforded by Garcia’s admission that he, at least once, had obtained employment by misrepresenting his immigration status. (Garcia, evidently, wasn’t expected to show “remorse” regarding injury to the applicant who would have gotten the job if Garcia hadn’t lied.)

Illegal-immigration’s best analog is tax evasion. To be guilty, one need not tell express lies. (In re Hallinan (1954) [different Hallinan] 43 Cal.2d 243 [income-tax evasion with intent to defraud is moral turpitude].) Like illegal immigration, no one deems tax evasion victimless despite that the individual victims of the fraud can’t be identified. Both involve a dishonest failure to satisfy legal obligations, with the motive that the wrongdoer appropriate resources lawfully belonging to others.

The Garcia court emphasized that illegal presence isn’t itself a crime (as, it also pointed out, neither was Garcia’s driving without license or insurance coverage). But the Stephen R. Glass matter shows that, just as crimes aren’t necessarily acts of moral turpitude, acts of moral turpitude aren’t necessarily crimes.