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.

99th Installment. Defend law blogging: The Horace Hunter Matter in Virginia

Legal and factual background

In the 92^nd Installment, “The Ethics of Ghost Blogging,” kanBARoo court predicted that law bloggers would be vulnerable to repression by the state bars: “Until the legitimacy of blogs is officially recognized, the law menaces blogging attorneys.” The prediction was confirmed when the bar and courts of the Commonwealth of Virginia demanded that criminal-defense attorney Horace Hunter label his postings "Advertisement."

Hunter took an almost unprecedented approach to blogging. His postings were often about his own successful cases, and when the bar tried to discipline him for declining to label his blog “advertising,” he blogged his own discipline case, a strategy pioneered by kanBARoo court in 2007. Like me, Hunter combined political and commercial motives. I blogged about the incompetence of the California State Bar and presented my views on legal ethics, with the purpose of both exposing the state-bar establishment and promoting myself as a ghostwriter for attorney respondents. Hunter presents a political critique of popular attitudes toward criminal defendants and rebuts the “guilty until proven innocent” mentality through examples drawn from his practice, showing how his experiences support his positions and how his attitudes and legal prowess make him an effective instrument for achieving those goals.

U.S. Constitutional issues

Horace Hunter’s case is on writ of certiorari to the Supreme Court of the United States, which has never ruled on the protections owed hybrid commercial and political speech, but integration between the political and commercial should require extending full protection to hybrids. The Virginia courts ignored the integration between the commercial and political in Hunter’s blog, instead weighing the political and commercial as separate, unrelated features. An example is the weight the court accorded the absence of the opportunity for readers to comment on Hunter’s blog and the blog's access through a link at a commercial web page, incidental features unrelated to the degree of integration of commercial and political content.

Hunter’s blog deserves the full protection of political speech because he integrated the commercial and political. Because his blog has been deemed essentially commercial, the bar claims the right to impose limited restraints if without them the blog is potentially deceptive. But the risk of deception is speculative. The Virginia bar hasn’t demonstrated the risk: it has produced no instances where anyone has been deceived, and it hasn’t been shown generally that contemporary U.S. citizens confuse honest accounts of attorney success with a guarantee. Labeling such postings as advertisements, as Virginia requires, or disclaiming warranty of results, as California might require, is probably unnecessary even in truly commercial messages, and the bars should bear the burden of performing the studies proving the necessity.

Consumer interests

Substantive law blogs could become a boon to consumers. The regulatory agency should encourage them even when they’re purely commercial because consumers have a dearth of good means to evaluate lawyers; blogs can highlight skills in analysis and communication. Who benefits from curtailing legal blogs? Only big law and other established attorneys, whose interests the state bars cater to. But when the political and commercial are integrated, as with Hunter’s blog, The week in Richmond criminal defense, and as with kanBARoo court, treating the blogs as commercial denies ordinary lawyers and other ordinary citizens—who must also make a living—the realistic opportunity to pursue their political ends.

The bar-establishment’s reply is that disclaimers don’t interfere with the message, but lawyers should know enough about writing to realize that surplusage misleads, by miscuing the reader. When a posting is labeled “advertisement,” readers will assume that the usual standards governing commercial advertising—such as permitting puffery—govern. When a posting is accompanied by a disclaimer of guarantee of results, readers will assume that claims regarding successful outcomes are the gist of the message and disregard the rest. (Even the common disclaimer, “This is not legal advice,” too often invoked defensively, will lead readers to think the content is unreliable when, as is often the case, the disclaimer is applied needlessly to matter obviously not legal advice.)

Caveat on client confidentiality

Since Hunter demonstrated substantial courage beyond the lawyerly norm by defying the bar, I criticize him reluctantly, but one aspect of the case gives cause for unease. Hunter didn’t request approval from clients for posting documents containing their names, breaching the ethical principle that attorneys must protect information obtained in the course of representation, even if it could be obtained by other means. The bar charged him with violating the client-confidentiality rule, but the Virginia Supreme Court held in Hunter’s favor, ruling that the First Amendment prohibits restrictions on disseminating judicial documents. The issue is important because it potentially strikes at the heart of attorney ethics: loyalty to clients; one former client complained.

The courts’ refusal to discipline Hunter for breach of confidentiality was correct on existing law, but were the state-bar establishment more sagacious, it could protect the loyalty-based core of the attorney-client relationship without breaching attorneys' First Amendment rights. Free flow of information is often restricted by contract without offending the First Amendment when parties agree to nondisclosure. Use of identifying client information without consent should be prohibited by a clause implied into every retainer agreement as the default. Then attorneys’ First Amendment rights are uncompromised because lawyer and client remain free to contract to allow disclosure.

Sources:
Horace Hunter v. Virginia State Bar
The week in Richmond criminal defense by Horace Hunter
Viewpoint: Court Struggles to Regulate Attorney Blogging by Richard Zitrin

94th Installment. Esteemed Legal Ethicist Richard Zitrin Lambasts California State Bar

Convergence

Incredibly, though, the Bar's Office of Trial Counsel (OTC) has a history of both under-prosecuting cases, such as those I cited, while at the same time over-prosecuting others. (“Why Bar Sometimes Overreaches on Discipline,” The Recorder, Sept. 30, 2011.)

So says respected legal ethicist Richard Zitrin, law professor at University of California, Hastings. (HT: Kafkaesq.) Does the message sound familiar? In the Second Installment to kanBARoo court in 2007, I wrote:

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as over-zealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than over-zealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.

Synopsis

In a three-part series in The Recorder running in September and November 2011 (most unfortunately, subscription only), Zitrin explains the incompetence, insularity, and self-protective mindset that induces the State Bar to suffer disloyal attorneys while it prosecutes vulnerable nonconformists.

Zitrin’s first explanation is that the State Bar prefers the easy way. It is too incompetent to prosecute many of the more important cases (Ronald N. Gottschalk comes to mind), so it picks cases based on their probative triviality.

Prosecutions of lawyers who have seriously and serially harmed clients, while hardly daunting, can be fact-intensive. Prosecutors must prove that a manifestly unfair transaction with a client was “really” theft or embezzlement, or that apparent abandonment of the client was not something else—an uncooperative client, miscommunication or change of address. None of these proofs involves rocket science, but they do require competent trial lawyers [which, as Zitrin documented earlier, the State Bar lacks]. And they are far more difficult than technical trust-fund violations, where the rules are applied strictly and the proof is readily at hand through bank records. No wonder OTC loves prosecuting those slam-dunk violations.

Zitrin’s second explanation resembles my polemic against the State Bar’s appearance-of-impropriety doctrine. Zitrin writes:

The Bar has always been highly sensitive to how it’s perceived. Or, more accurately, how it perceives it’s being perceived. So if a judge complains about a lawyer, even if OTC doesn’t see a violation it will likely examine the case closely. If there is political pressure—or lots of publicity—then even more scrutiny is likely.

Zitrin’s third explanation corresponds to what I call bureaucratic reflex, not judging the case on its facts but on a moralistic archetype of wrongdoing.

The highly insular State Bar does not like it when lawyers act outside the box—or, more accurately, outside their box. It has long been primed to go after people it considers outliers. Too often, OTC resorts to the “catch-all” discipline provided not in the ethics rules but in the State Bar Act, originally enacted in the 1930s. Particularly appealing to prosecutors are Business & Professions Code § 6106 (“The commission of any act involving moral turpitude, dishonesty, or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a [crime] or not, constitutes a cause for disbarment or suspension”) and § 6068, subd. (a) (“It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.”)

Zitrin illustrates the prosecution of outliers with matters involving famous attorneys in two cases where the State Bar was reversed by the California Supreme Court: Belli v. State Bar (1974) 10 Cal.3d 824 and Jacoby v. State Bar (1977) 19 Cal.3d 359. The recent prosecution of Philip E. Kay is the current version—after the Supreme Court stopped reviewing State Bar matters.

Zitrin assesses the current state of affairs:

The State Bar has a proven track record of mediocrity in dealing with discipline. Even with the advent of the professionalized State Bar Court, OTC’s modus operandi has not appreciably changed: too many serious cases falling through the cracks; too many “easy” prosecutions resulting in harsh discipline; too many of the worst offenders still in practice.

And Zitrin offers a bleak prognosis:

Even assuming that staff can be improved and professionalized from within, changing OTC’s law firm culture will be far more daunting. There’s no reason  to think that the State Bar’s insularity and opacity will change; no one I talk to within the Bar showed the slightest interest in that.

 Limitations

Although Zitrin’s critique shows that even some official ethicists are catching on, Zitrin’s is less thoroughgoing than kanBARoo court’s; he's dismayed by the prosecution of outliers but seems more concerned about expenses than attorney victims. Regarding one case, where a prosecutor was ordered to investigate whether a state lawyer could be disciplined for exposing the fraud of a nonclient state boss, Zitrin comments, “What a waste of time.” But intimidation, not time, is the main issue.

Zitrin is overly impressed with some prosecutors, such as Jeffrey DalCerro (head of the San Francisco Office of Trial Counsel), whom Zitrin terms “long committed to busting bad guys.” Zitrin fails to grasp that self-righteous moralism encapsulates State Bar "insularity and opacity."

Most importantly, Zitrin places excessive confidence in the California Supreme Court. He proposes abolishing capital punishment to save professional self-regulation by dramatically reducing the Supreme Court's caseload, so it can effectively supervise the Bar. A worthy proposal in itself, abolition of capital punishment, but Zitrin doesn’t understand that the Supreme Court’s special relationship to the State Bar (which functions as its administrative arm) creates a conflict of interest which incapacitates scrutiny. (Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative"]; Friedman & Gaylord (1999) Rooker-Feldman, From the Ground Up, 74 Notre Dame L. Rev. 1129, 1132 ["there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs"].)