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.  


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