Wednesday, September 2, 2015

Interlude 29. Journalistic Coverage Suppressed by “California Lawyer”? Don’t let the California State Bar be Done with Dunn!

The California State Bar is using its considerable influence as an agency of the Supreme Court to suppress discussion of its embarrassing rift with former Executive Director Joe Dunn.

In early May, prominent legal-affairs reporter Susan Kostal telephoned me on a story she was commissioned to write for California Lawyer, which happens to be the largest-circulation legal journal in the world. I was one of many critics of the California State Bar she would be interviewing. I talked to her for an hour and referred her to the relevant parts of kanBARoo court, and she said she would call back with questions. At the interview’s end, I expressed surprise that the influence of the State Bar wouldn’t preclude publishing an exploration of the charges of state-bar “dysfunction,” as revealed by the Joe Dunn scandal. Ms. Kostal replied that the Supreme Court justices on California Lawyer’s advisory board would be ill-advised to use their influence to censor journalism; same with Joe Dunn, who is also on the advisory board.

Four months hence, I have heard nothing, no article appeared, and the reporter didn’t respond to my email about the article’s status. I had thought her na├»ve to think the article would be published, and I can only assume that the article was suppressed.

Although the planned article was to be comprehensive, the Dunn scandal, which I’ll briefly recapitulate, was at center stage. The state bar’s Dunn crisis emerged in November 2014 when the State Bar fired him as executive director. Dunn sued the bar, alleging he was fired because he had blown the whistle on the Office of Chief Trial Counsel for falsifying statistics to hide from the Legislature the bar’s quantitative underachievement. (No one cares about their qualitative underachievement). The state bar claims he had interfered in the discipline process. (As some ethicists have pointed out, how else would he know about the falsified statistics?)

I know from personal experience that the Office of Chief Trial Counsel is prepared to commit fraud when there is much less at stake than meeting Legislative demands. But what is most striking is that Dunn, who as self-appointed point-man for the Legislature (now practicing personal-injury law and advertising himself as “The Senator”) served as executive director for four years, bearing the direct responsibility for the ouster of former Chief Trial Counsel James Towery. That an opportunistic political hack has led the state-bar bureaucracy reveals that the anointed moral guardians of the law profession are engaged in a war of corrupt, power-hungry alliances, the leading actors in the state bar amorally currying favor with our political and economic elites.

Among the elites identifiable in the Dunn controversy are the Legislature and the Supreme Court, who both are fighting an underground war for dominance over the practice of law. A third faction, the richest law firms, represented on the Board of Trustees by its elected members, casts the deciding vote. The program of none of the factions is substantially less fortunate for ordinary lawyers and the public, the Supreme Court being just as duplicitous as the Legislature, as by its choice to direct the state bar beneath the public radar rather by than by honestly reviewing decisions.

So, don’t expect, quite yet, that the state-bar establishment will be promoting public discussion of its crisis. Will lawyers and legal ethicists let it drop?

Saturday, June 13, 2015

111th Installment. Difficult clients: State-bar sanction as a tool for policing court access

The state-bar establishment being prone to unwitting self-exposure, former Chief Trial Counsel Scott Drexel once admitted that technical misappropriation is his main target. A recent blog posting by Mike Frisch of the District of Columbia enforcement apparatus advises attorneys about how to “stay out of bar trouble,” and compared even to Drexel’s admission, Frisch’s stunning advice cuts to the essence of state-bar oppression:
Avoid problem clients. If the client has wildly unrealistic expectations, wants much [more] justice than he or she can afford, or has had several prior lawyers all of whom are liars and cheats, it may be prudent not to get involved.
The broadest public access to the courts is a basic democratic imperative. That representing uncompromising clients is the road to disbarment exposes the state-bar’s public-protection hoax, as the state-bar sanctions system serves as an antidemocratic screen to keep unruly parties out of court.

Representing difficult clients may be the premier cause of lawyers being disbarred. (Avoiding problem clients was Frisch's premier advice.) Does Mike Frisch see the implications? Where the risk of bar sanctions depends on client selection rather than acts of malfeasance, the discipline system is fundamentally unjust. Since his clients’ predisposition to complain sets the risk for an attorney’s disbarment, then either charges (and the almost inevitable conviction) are largely trumped up or the offending conduct is quasi-universal, with the issuance of charges tantamount to selective prosecution. How many attorneys have never made a trust-account mistake?

The state bars’ fishing-expedition pleading methods and investigatory practices are designed to guarantee conviction. Most respondents are convicted (of something), although most charges are dismissed with prejudice.

These practices express the mere-appearance-of-impropriety dogma, which I have identified as the ideological underpinning of state-bar oppression. The real offense prosecuted is diminishing the status of the legal profession by eliciting a colorable complaint or representing unruly parties.

Concern for appearance over substance is a tendency inherent in law, especially in matters of ethics, but democracy’s depth is measured by rejection of this hypocrisy.