58th Installment. No discipline without proof of moral turpitude!

Although criticizing the moral-turpitude standard as vague is a popular if futile tactic of State Bar respondents, the remedy for the State Bar's main pathologies, embrace of strict ethical liability and imposition of culpability for impropriety's mere appearance, is that the State Bar adopt a narrow and exclusive moral-turpitude standard for discipline. Principled opponents of the State Bar take opposite positions on the moral-turpitude standard. Noting that California is the only state using the concept of moral turpitude, some urge its abolition in California, where it was once a bulwark against expansion of State Bar power. (See In re Fahey (1973) 8 Cal.3d 842.)

Eliminating the moral-turpitude standard would leave a hodgepodge of rules, pragmatic in their lack of guiding principle, containing no internal bar to their expansion, and, like obscenity law, propelled down that road, but making moral turpitude precise depends on adopting a narrow definition. (Cf. Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 (dis. opn. of Brennan, J.).) In broad, commonsense typologies, acts of deceit take two forms, lies and broken promises, and a broad moral-turpitude concept is rooted in this broad concept of deceit, whose indefiniteness allowed moral turpitude to expand far beyond deceit's borders. The common law treatment of deceit—a breach of promise is not a legally cognizable public wrongdoing, becoming so only when the promise was secretly unintended—is a better guide. Thus, breach of contract is not ordinarily tortious, is not subject to punitive damages, but promissory fraud is both. Legal ethics should retain the common law's concept of deceit, a narrow category tightly linked to lying.

An argument against the narrow moral-turpitude standard's exclusivity is that the space between incompetence and deceitfulness is filled with numerous other character flaws from which the public supposedly needs protection. Does the public need protection from substance-abusing attorneys? (See, for example, In re Nadrich (1988) 44 Cal.3d 271.) Belief that the State Bar should protect the public from varied attorney-selection risks is an ideological obstacle.

Overdeterrence distorts societal priorities, as a worthy no less than Chief Justice George failed to understand when he campaigned to fund court expansion by taxing convicts, punishment severity a matter too serious for political opportunism and fiscal convenience. The public needs protection from narrow moral turpitude because the practice of law creates unique criminal opportunities, but the public should not assume the social burden, such as limiting attorneys' constitutional rights, of specific State Bar disciplinary "protection" against all manner of inferior or improper attorney performance.

Another example of ostensible public need for protection broader than a narrow moral turpitude standard provides: an attorney isn't supposed to communicate with a represented party. On what principle should the State Bar base enforcement of a rule such as this restraint on communication, since talking to a represented party isn't deceitful? One line of response defeats the anti-expansionist purpose of the proposed exclusive attorney-discipline standard: that the communication is deceitful because it's against fair play, and cheating is a form of deceit. Once deceit is stretched beyond connection with the well-defined concept of lying, the standard's advantages dissipate. 

The rule should be questioned rather than the definition of "moral turpitude" stretched if the profession can't legitimately discipline an attorney for a rule violation. Whose interests besides the attorney guild’s are served by dictating an attorney shouldn’t communicate with a represented party, and why do clients with attorneys retained need protection beyond their ordinary right to hang up the phone? One advantage of a reluctance to multiply causes for discipline is it helps see the superfluity of purportedly ethical rules properly beyond discipline's reach.

Moral turpitude isn't the only conduct that should affect eligibility to practice law; one (and only one) additional standard should apply. Regulation of the practice of law will also include extirpating incompetence (assuming practices so close to basic free speech and petition rights should be regulated). Although the total harm caused by attorney incompetence is surely greater than by moral turpitude, discipline isn't the remedy for incompetence, the condition hard to distinguish from bad luck except by written re-examination.

55th Installment. Vindicating the Right to Litigate

When economic expansion abated in the middle 1970s, means for adjudicating and satisfying legal rights fell short of the newly authorized suits. To avoid unmanageable caseloads, the courts took shortcuts, including nonprecedential, unpublished opinions and penalties for litigation deviating from paradigm. While Justice Black, for example, had once argued for a reoriented, textualist First Amendment jurisprudence, under today's sensibilities, filing an appeal using a free-speech theory as unconventional as Justice Black's risks sanction. The courts instituted a gradient of litigation constraints, all anchored in draconian measures. The two groups of litigants, represented and unrepresented, were each assigned a unique ultimate deterrent: for litigants represented by lawyers, State Bar discipline; for pro se litigants, the vexatious-litigant classification.

In California, the same constitutional issues apply to each litigation deterrent: both involve a mixture of First and Fifth Amendment issues centered on the right to petition and equal protection of the law. A pattern of litigation error occurs when in-court civil libertarians sue or defend to undermine the unconscionable vexatious litigation statute (which I treat here and here in my legal-theory blog) or State Bar discipline for allegedly frivolous filings. In State Bar cases, attorneys trying to invalidate Bar procedures have argued mostly right to petition, in vexatious litigation cases equal protection. In-court civil libertarians should apply the reverse strategy for each, equal protection for the State Bar cases, the right to petition in vexatious litigant cases. These laws' opponents committed the same error for an identical reason, seduction by the obvious. (See preceding hyperlinks.) Freedom of petition is the obvious objection to constraints on lawyers' petition rights because an economically privileged group's unequal protection goes against intuition. Unequal protection is the obvious counter to the vexatious litigation laws because the laws harm the poor. The Legislature's effort to avoid these arguments outweighs their obviousness, whereas the statutes’ drafters ignored the arguments invisible to in-court civil libertarians.

Recognizing this pattern allows State Bar opponents to use vexatious-litigant holdings advantageously. The tactic is unstable over the long run because it depends on bad law, but the courtroom is anathema to philosophic consistency. A legal opposition should take advantage of the law's cracks as they appear because systematic overhaul in court isn't realistic. In Installment 53, I sketched an equal-protection argument against the State Bar's infringement of the right to petition. The vexatious-litigant statute is both problem and solution. Problem because the putative counterbalance avoiding Fifth Amendment invalidation of State Bar filing constraint is unrepresented litigants' parallel constraint. Solution because courts upholding the vexatious litigant statute hold only a complete litigation ban violates the Fifth Amendment. (Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, 1126-7.) The threat of disbarment, State Bar opponents should contend, is a complete ban. The courts hold "vexatious litigants" aren't barred from filing their suits, but attorneys won't knowingly risk disbarment. The deterrent applied to attorneys is qualitatively harsher, tantamount to prohibition. The comparison proves fundamental-rights discrimination against attorneys.

54th Installment. Protected Nonspeech and Unprotected Speech: Paradoxes of Nonprotection

Installments 53 and 53A assumed filings, even those the courts deemed frivolous, are protected speech. Strong arguments support that contention, but the U.S. Supreme Court disagrees. Without much analysis, the U.S. Supreme Court concluded that frivolous court filings are unprotected speech. (Bill Johnson Restaurants Inc. v. Nat. Lab. Rel. Bd. (1983) 461 U.S. 731, 743 ["(B)aseless litigation is not immunized by the First Amendment right to petition"].) (But see Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.)

Thanks to R.A.V. v. City of St. Paul, MI (1992) 505 U.S. 377, unprotected speech isn’t entirely unprotected. Consider obscenity, a category of unprotected speech. The absence of Constitutional protection for obscenity means obscene speech is not only subject to limitation based on a compelling or even substantial state interests but can be suppressed to any degree the Legislature intends, without tailoring. But it doesn't mean the First Amendment gives the legislature unfettered discretion in selecting which obscene acts to censor. The Legislature, most importantly, cannot choose to censor obscenity based on the viewpoint the speech — contained in the obscene nonspeech — expresses.

If the legislature decides to allow obscene publications by the Greenback Party, it must also allow the Prohibition Party to publish matter containing obscenity. The main barrier to complete control over the publication of matter belonging to an unprotected category is that the right's exercise can't be conditioned on viewpoint. While the key formal distinction in First Amendment jurisprudence is content discrimination versus content neutrality, the real target of prohibiting content discrimination is often said to be discrimination against viewpoints. (Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46, 48 ["Whether applying an ‘absolute protection’ approach, a ‘clear and present danger’ test, a ‘compelling governmental interest’ standard, or some other formulation, the Court almost invariably reaches the same result-content-based restrictions of ‘high-value’ speech are unconstitutional"].)

Unlike bans on obscenity — but like bans on incitement presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction]) — bans on frivolous filings are inherently viewpoint discriminatory. The ban, however, proscribes a dimension of viewpoint the state can ignore. The First Amendment tolerates complete irrationality in discriminating among levels of frivolousness, even though this discrimination is inherently against viewpoints. Similarly, during war, the state can ban only some speech apt to cause imminent violence, even though calling for imminent violence is a content distinction and, not only that, but is a viewpoint distinction: whether one thinks immediate violence is a good thing is a difference in viewpoint, not just a difference in content.

What remains illegal under the R.A.V. standard, despite the unprotected status of frivolous filings, is apportioning the privilege of frivolous filing. The government can't let some groups file frivolously and ban others trying to exercise the same privilege. Since to the extent the filing is protected its protection deals with viewpoint discrimination, any discrimination with respect this right's complete suppression is subject to strict scrutiny.

Analogized, the government totally suppresses incitement in one jurisdiction but treats it mildly in another, despite the speech carrying the same dangers. If denizens of the City of Delitiga could stand on a street corner giving emotional speeches that risked a riot, but denizens of the City of Alitiga suffered ten years forced labor in Alaska for the same outrages, the Alitigans would be denied the equal protection of the law. Only a compelling state interest in discriminatory treatment would justify censorship in one place and not the other, given the same instigation and potential for violence. Similarly, lawyers suffer potential disbarment for filing frivolous motions or violating court orders, and nonattorneys in pro per suffer no catastrophic penalty.

The relationship between protected speech that survives strict scrutiny and unprotected speech was a thorny but unacknowledged problem in constitutional jurisprudence until R.A.V. The doctrine of unprotected speech was first propounded with the rule allowing the government to punish fighting words. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568.) As the minority insisted, traditional interpretation would have held, uncritically, that "unprotected speech" is unprotected simpliciter. In R.A.V., Justice Scalia, writing for the majority, argued convincingly that the First Amendment doesn't countenance forcing one side to argue by "Marquis of Queensbury Rules" while the other side fights "freestyle." (R.A.V. v. City of St. Paul, MI, supra, 505 U.S. at p. 392.) On the R.A.V. standard, unprotected speech is unprotected only with respect to its unprotected aspect. Where St. Paul banned "hate speech" against only some groups, even though this speech consisted of "fighting words," and even though the groups were suspect classes, the City of St. Paul acted in excess of its rights under the First and Fourteenth Amendments by discriminating against contrary viewpoints.

Justice Scalia doesn't directly address the contrast between unprotected speech and the strict scrutiny test. Although many cases survive strict scrutiny in district and the court of appeals, First Amendment constraints don't survive strict scrutiny in the U.S. Supreme Court. (Winkler, Fatal in Theory and Strict in Fact (2006) 59 Vand. L. Rev. 793, 796.) [A puzzle Juridical Coherence will endeavor to solve.] Even the Supreme Court need not address what's not before it. What follows from the majority opinion is: restrictions on unprotected speech need not be tailored to legitimate state interests. The constraints can't be overinclusive, nonetheless; that, everyone agrees. R.A.V.'s law doesn't prohibit underinclusiveness, as the First Amendment requires of content-neutral constraints on protected speech. For unprotected speech, the First Amendment says the government need not be fair to its purveyors except as it bans protected aspects. One of those protected aspects is viewpoint neutrality in extending the state's allowances. Attorneys have become the surprise targets of discrimination.

Don't miss my new blog Juridical Coherence: Legal Theory on Framework Issues.

Interlude 8A. Ronald N. Gottschalk Esq. —The Smoking Gun

Report: Ronald N. Gottschalk Esq. denies my accusations of fraud, less opprobrious than his anti-First Amendment threats. To quench readers' lawyerly thirst for proof, I append two e-mails: the first, confirming our agreement; the second, claiming weather conditions delayed Gottschalk's performance, which he didn't intend to deliver. My low rate expressed anti-State Bar solidarity.

BEGIN E-MAILS

from Stephen R. Diamond to gov@roadrunner.com, randypotter@gmail.com date Sat, Sep 27, 2008 at 1:36 PM subject Agreement mailed-by gmail.com

hide details Sep 27

Reply to all

Dear Ron,

You retained me today for legal research, analysis, and consultation. We agreed on a fee of $50 per hour, and an initial retainer of $750, which I will apply to the first 15 hours of work.

No fees will be charged for previous telephone consultation time. I will begin work upon receiving the relevant documents by e-mail and a business or trust account check for $750, or notification that you have actually mailed it.

Stephen R. Diamond
Legal Research & Writing Service
Supplier of Legal Theories
srdiamond@gmail.com
760.974.9279

from Randy Potter to "Stephen R. Diamond" , gov@roadrunner.com, randypotter@gmail.com date Sun, Sep 28, 2008 at 12:29 PM subject Re: Mailing Address mailed-by gmail.com

hide details Sep 28

Reply to all

We had a massive power failure in North Mandiville canyon last night for all residents. That included theinternet, and all power. Will try to email the documents tonight. I will mail the retainer check Monday. Ron

END QUOTED E-MAILS

The addressee Randy Potter is Gottschalk's employee.

kanBARoo Court. 53rd Installment. State Bar v. Equal Protection of the Law

When the State Bar disciplines an attorney for violating court rules and orders restricting filings and in-court statements, the State Bar regulates speech, and restraints on speech must not exceed First and Fourteenth Amendment limits. Alleging violation of attorney free-speech rights is the reflexive reaction to State Bar interference in speech regulation, an approach that hasn't won and won't, but to the State Bar's delight, the same facts elicit the same self-defeating reflex from respondents.

The First Amendment-based Canatella line of cases confuses some California State Bar Court respondents, as the minor victory in Canatella v. State of California (9th Cir. 2002) 304 F.3d 843 ("Canatella 1") obscures the egregiousness of Canatella v. Stovitz (N.D. Cal. 2005) 365 F.Supp.2d 1064 ("Canatella 2"). Canatella 1 seduces attorneys to repeat instead of learn from the Canatella 2 mistakes. Canatella 1 found that the Younger abstention doctrine, which protects ongoing state proceedings from federal court interference, did not compel case dismissal, since Canatella filed before the State Bar served him a case-initiating Notice of Disciplinary Charges. Canatella 1 also held the case, seeking prospective relief, wasn't subject to the Rooker-Feldman doctrine, which applies to cases seeking review of state-court decisions. Canatella's case ripened before the State Bar acted, when a new violation put the previously disciplined but unrepentant Canatella on a collision course with the State Bar. Canatella skillfully maneuvered around the restrictions of Younger abstention, the Rooker-Feldman doctrine, ripeness, and mootness, to find a way to federal court. But his narrow procedural victory allowed a hearing due only to special circumstances, and the holding is usable by few respondents. Having decided these procedural preliminaries, the Ninth Circuit ordered the Northern California District Court to try the case. The district court rejected Canatella's petition on the merits.

Canatella 1 established a narrow procedural point significantly increasing the State Bar respondents' degrees of freedom, but Canatella 1, contrary to the impression of some, is far from the most important prorespondent disciplinary result obtained in federal court. That honor belongs to Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. of CA v. Yagman (9th Cir. 1995) 55 F.3d 1430. Yagman had publicly stated that a district court judicial officer, Judge Keller, was dishonest, had a "penchant for sanctioning Jews," and was "drunk on the bench." The Ninth Circuit dismissed the disciplinary action against respondent Yagman, holding "lawyers' statements unrelated to a matter pending before the court may be sanctioned only if they pose a clear and present danger to the administration of justice." (Yagman, supra, at p. 1443.) Yagman not only set a strong affirmative precedent but helped limit a U.S. Supreme Court case that significantly impaired attorneys' free-speech rights. Gentile v. State Bar of Nevada (1991) 501 U.S. 1030 held that in ongoing or pending litigation, the standard of "substantial likelihood of material prejudice" can impose a standard weaker than clear and present danger for restraining attorney speech. Yagman clarifies that "when lawyers speak out on matters unconnected to a pending case, there is no direct and immediate impact on the fair trial rights of litigants." (Yagman, supra.)

Two mistakes, two First Amendment reflexes, confuse respondents who duplicate Canatella 2's mistakes. The first is the concept that an attorney has personal free-speech rights in court representing litigants. This mistaken reasoning has confused attorneys so they argued the First Amendment protects filing frivolous motions. The leading cases' rhetoric fosters the view that attorneys have some personal free-speech rights in the courtroom, but it leads naught. The standing aphorism is that "attorneys and other trial participants do not lose their constitutional rights at the courthouse door.” (Levine v. U.S. District Ct. for the C. Dist. of Cal. (9th Cir. 1985) 764 F.2d 590, 595.) The Canatella 2 court puts the Levine holding in perspective: "The United States Supreme Court has held that 'in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed.'" (Canatella 2, supra, at p. 1071, citing Gentile.) Gentile remained a problem for Canatella and remains problematic for other State Bar respondents who assert free speech rights during pending procedures. Exuberance about attorney free-speech rights typically ignores distinctions between the attorneys' personal rights and their clients' rights. When courts announce that rights don't stop at the courthouse door, they impliedly speak of the represented parties' rights, not their attorney's personal rights. But the distinction is unstated, the Gentile court appearing to have in mind the attorney's personal rights when the court described their slenderness in an ongoing case. Systematic confusion between the two rights bearers diminishes litigants' First Amendment right to petition for redress. The concurring opinion in another Ninth Circuit case captures the real state of the law on attorney free speech rights:

I believe [Sacher v. United States (1952) 343 U.S. 1] and Gentile are potentially misleading: although they discuss the in court First Amendment rights of lawyers, in fact those rights do not have any independent substance. In the courtroom, during a judicial proceeding, an attorney's "First Amendment" rights depend exclusively on his client's trial rights. The attorney may speak only to the extent that his client's rights allow him to speak.” [Citation.] (Zal v. Steppe (9th Cir. 1992) 968 F.2d 924, 931 (conc. opn. of Trott, J.).)

Gentile's practical import is that in 1991 it had already foreclosed opposing disbarment for frivolous filings because they are believed expressive. Even though the specific speech involved in Gentile was highly public speech, the holding enveloped filings too, since it dealt generally with attorney speech relating to a pending case.

More important than the distracting confusions about an attorney's personal free-speech rights in court is the second type of mistake in opposing the State Bar's speech restraints: the persistent failure to distinguish State Bar discipline from contempt actions in California courts of record. Repeating Canatella's mistakes means, foremost, failing to distinguish State Bar discipline for violations of orders and rules from their imposition by the courts. Just as no one questions the legality of sanctions imposed for frivolous motions, more severe sanctions imposed for contempt are ordinarily valid, but the penalties should be invalidated when authorized under State Bar law rather than the court's contempt powers, the State Bar's threat qualitatively more onerous than a contempt. When attorneys test an order's validity by refusing to obey, they assume the risk they will pay a fine or even spend days in jail, whereas no attorney would test a contempt order risking State Bar discipline; the highly subjective exception for reasonable good-faith justification only dents the risk. State Bar intervention in court affairs by disciplining disobedient attorneys, consequently, impugns California's public policy allowing parties to challenge orders by conduct.

American Civil Liberties Union v. The Florida Bar (11th Cir. 1993) 999 F.2d 1486 shows how the intervention of State Bar disciplinary machinery chills advocacy much more than the threat of a contempt citation. Florida attorney Schack was running for judge, but the language of the Bar rules, which the State Bar had previously applied to limit judicial candidates' speech, cast doubt on whether exposing an opponent's corrupt practices violated rules about maintaining the dignity of office even before its attainment. Yet the State Bar refused Schack's request for an advisory opinion. Complains the Eleventh Circuit, "Thus, with two weeks remaining until the election, Schack was faced with the choice of risking possible disciplinary action by the Bar [and a related agency], or self-censoring his proposed campaign speech, despite his belief that this speech was protected under the First Amendment." (Id., at p. 1489.) Civil penalties as might apply to non-lawyers are not so paralyzing.

The argument that State Bar intervention in speech regulation singles out attorneys for harsher treatment is an equal-protection argument, rather than a free-speech argument. Lawyers and their clients are deprived of the equal protection of the law when litigants are permitted to invalidate orders by contesting a contempt citation, or violate rules and risk only monetary sanction, while the State Bar's much harsher penalties effectively compel automatic attorney compliance with all court orders. This argument's chances are better than the failed free speech arguments; Gentile's four-justice dissent shows that judges can scorn unfair and unnecessary laws exclusively targeting attorneys:

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. And none of the justifications put forward by respondent suffice to sanction abandonment of our normal First Amendment principles in the case of speech by an attorney regarding pending cases. (Gentile, supra, at p. 1054 (lead & dis. opn. of Kennedy, J.).)

State Bar-imposed speech restraints, even when unobjectionable in themselves, should be invalidated, since superimposed on the laws governing nonattorney litigants, they amount to a comprehensively restrictive regime impinging the fundamental right to the law's equal protection.

kanBARoo Court. 44th Installment. Richard I. Fine Revisited and the State Bar's Usurpation of the Contempt Power

Richard I. Fine, fighting on several fronts, continues to resist State Bar oppression. Fine recently presented oral argument before the State Bar Court Review Department, submitted disqualification motions against judges involved in his disbarment, and filed a civil rights suit in federal court for declaratory and injunctive relief. In the federal action, Fine seeks to have Business and Professions Code section 6007, subdivision (c)(4), declared unconstitutional. Fine contends this provision violates due-process notice requirements by allowing the State Bar Court to enroll Members involuntarily inactive, as corollary to a disbarment recommendation, without holding a special hearing evaluating the factors subdivision (c)(2) requires. Fine also challenges the "moral turpitude statute," Business and Professions Code section 6006, as unconstitutionally overbroad.

The Metropolitan News-Enterprise (June 25, 2008) covered Fine's oral argument. The reported remarks show both the Office of the Chief Trial Counsel's abysmal legal backwardness and the State Bar Court's unconstitutional over-reaching. The State Bar's counsel maintained that the Fine case did not pose First Amendment issues, because the case concerns acts done, not utterances stated. The comment of Review Judge Judith Epstein proves the wrongheadedness of the OCTC's perspective. Judge Epstein saw Fine's judicial communication of allegedly known falsehoods as the gravamen of the State Bar's charges. The relevant distinction drawn by Epstein has nothing to do with that between speech and action, as Bar counsel conceives, but whether the constitution protects the given speech.

Bar Trial Counsel also stated that the problem is that Fine sees no wrong in his actions, and, if allowed to practice law, he would repeat them. Even if sound, this argument fails to embrace the State Bar's ameliorative theory of discipline, as trial counsel does not consider the likelihood that imposing lesser discipline would change Fine's attitudes. (See Maltaman v. State Bar (1987) 43 Cal.3d 924, 958 ["Because petitioner has no prior record of discipline, we have no evidence that a sanction short of disbarment is inadequate to deter future misconduct and protect the public."].) Exposing the State Bar's self-serving disregard of the prospects for "reforming" respondent Fine is not to admit that Fine's attitudes need reform. The State Bar's grandiose belief in its own capacity to determine independently whether Fine performed his lawyerly duty of candor to the court does need reform. Fine reports that findings of contempt in two courts were invalidated. The State Bar didn't predicate its charges on contempt findings because judicial officers—unable to sustain contempt charges in courts of record —obtained a de facto contempt conviction by collaterally attacking Fine in the State Bar Court.

The argument that a guilt finding for contempt must undergird a constitutionally proper penalty for violating a court order applies to Fine's situation, because the logic applies not only to violating court orders but also to breaching any rule or statute tested by constitutional-court contempt proceedings. The 41st Installment argued that interpreting Business and Professions Code section 6103 to allow State-Bar attorney discipline for violating a court order, absent contempt, was incompatible with California's public policy, which lets litigants challenge court orders by violating them. The inconsistency between public policy and State Bar practice deprives attorneys and indirectly their clients of the law's equal protection. Proving contempt by judicial fact finding—not necessarily involving a court order—implicates the same principle, since non-attorney parties, unequally, have the right to a contempt trial, with its higher standard of proof than a State Bar proceeding.

kanBARoo Court. 41st Installment. Defying Court Orders

What do journalists and lawyers have in common? Members of both professions have had to suffer time in jail for disobeying court orders, journalists to protect their sources, lawyers for zealously pursuing the interests of their clients. If unjust laws deserve breaking, oppressive court orders sometimes deserve the contempt they get. Notwithstanding this democratic axiom, the California State Bar may discipline an attorney and even disbar him for disobeying a court order, and the State Bar has passionately pursued these prerogatives. (See, for example, In the Matter of Respondent X, A Member of the State Bar (1997) 3 Cal. State Bar Ct. Rptr. 592.)

While not the equal of the Dred Scott court, the U.S. Supreme Court made an infamous decision affirming a duty to obey court orders, no matter how invalid, in Walker v. City of Birmingham. In its effort to suppress the civil rights movement, the Alabama courts restrained the rights of protesters to assemble peacefully during the public-accommodations sit-in movement. While no justices would dispute that the Alabama injunction was invalid on First Amendment grounds, the Supreme Court held in a 5 to 4 decision that convictions for violating the order must stand. According to the majority Alabama had the right to prohibit collateral attack on all orders issued by the state courts. (See Walker v. City of Birmingham (1967) 388 U.S. 307.)

Three dissenting opinions, each signed by all at least three dissenting justices, eloquently criticized the majority opinion and memorialized disobedience's constructive role. As Justice Brennan stated:

The vitality of First Amendment protections has... been deemed to rest in large measure upon the ability of the individual to take his chances and express himself in the face of such restraints, armed with the ability to challenge those restraints if the State seeks to penalize that expression… [R]emember the stern lesson history taught courts, in the context of the labor injunction, that the ex parte injunction represents the most devastating of restraints on constitutionally protected activities. (Walker v. City of Birmingham, supra, 388 U.S. at pp. 345-346 [Dissent, J. Brennan].)

In California one has the right to test any court order by disobeying it and then proving its invalidity in the ensuing contempt trial. Hence, no wrong has been proven against a respondent until the violator is found guilty of contempt of court. But the State Bar Court construes the statutory terms to mandate discipline without a contempt proceeding in California's constitutional courts. Under Business and Professions Code section 6103:

A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear … constitute causes for disbarment or suspension.

The State Bar construes the statute to give the State Bar jurisdiction based on the Bar's view of whether the attorney "ought in good faith to do or forbear" as ordered. The State Bar's interpretation is wrong for two reasons: (1) similar provisions do not apply until the courts have tried the matter; and (2) disciplining untried acts of disobedience to court orders is against California public policy. For the first, Commission of a felony warrants disbarment but usually only after actual conviction. The State Bar does not presume to try the felony itself. For the second:

In this state a person affected by an injunctive order has available to him two alternative methods by which he may challenge the validity of such order on the ground that it was issued without or in excess of jurisdiction. He may consider it a more prudent course to comply with the order while seeking a judicial declaration as to its jurisdictional validity. [Citation.] On the other hand, he may conclude that the exigencies of the situation or the magnitude of the rights involved render immediate action worth the cost of peril. In the latter event, such a person . . . may disobey the order and raise his jurisdictional contentions when he is sought to be punished . . . . (In re Berry (1968) 68 Cal.2d 137, 148-149).

The State Bar respondent accused of violating a court order can prove the order was invalid, although even that much was denied by the dissent in Respondent X, supra. Proof in the State Bar Court is not beyond a reasonable doubt, as in a contempt trial. Unlike a serious contempt trial, no jury of one's peers finds guilt. Rather, guilt is always decided by a single sub-constitutional judge. The absence of contempt charges, moreover, usually means the Superior Court judge did not think the disobedience sufficiently odious.

Lawyers often have the best reasons for disobeying court orders. The State Bar wields a double standard, by which the State Bar enforces court orders against lawyers with stringency greater than as applies to other citizens, ironically depriving lawyers of the law's equal protection for professional judgments central to advocacy. State-Bar respondents should challenge Business and Professions Code section 6103's unconstitutional application, which allows discipline without an underlying contempt proceeding. Better, the Legislature should repeal the entire statute. The courts have terrible contempt powers, sufficing to enforce court orders, violation not proving unfitness to practice.