90th Installment. Behind the James Towery Ouster: California State Bar Gets Even Worse

Nobody quite knows why James Towery—the replacement for ousted extremist Scott Drexel—resigned on July 1, one year into his term as chief trial counsel for the California State Bar. Publicly, Towery blamed the resignation on the logistics of his commute from his San Jose residence, but the subsequent firing of four managers by the State Bar’s executive director, Joseph Dunn, convinced even David Cameron Carr, leader of the State Bar defense establishment, that the so-called resignation—precipitated by the California Senate’s failure to confirm after eleven months—was the beginning of a purge.

Yes, but who comprise the factions? Immediately following Drexel’s ouster, kanBARoo court surmised that the State Bar defense establishment spearheaded it. But the Towery purge wasn’t the prosecutory bar’s revenge. At issue—what to do about the huge backlog created by Drexel’s excesses (as well as some of Towery’s in the foreclosure arena).

Towery’s contention with the State Bar’s political leadership centered on the new rules, effectuated in January 2011. In his public comment on the proposals, Towery—while pretending a general sympathy with the rules—opposed all the major proposed changes:

• Eliminate most discovery from State Bar court proceedings
• Remove the Evidence Code in disciplinary proceedings, replacing it with the rules prevailing in administrative courts
• Automatically disbar defaulting respondents

Towery submitted (verbatim) the following criticisms in August 2010 after the Board of Governors allowed extra time for public comment to allow the new chief trial counsel to submit a response:

• As for discovery, each party should continue to be allowed at least one deposition of a nonexpert witness and without court approval;
• Unlimited depositions of expert witnesses;
• Parties should be allowed to take depositions of out-of-state witnesses;
• Parties should have the right to unlimited depositions in reinstatement and moral character cases;
• As for the evidence standard, reliability and predictability of evidence is best served employing the high standards and safeguards of the Evidence Code;
• The relaxed standard of evidence would permit parties to offer large quantities of hearsay testimony and documents
• APA hearsay objections can be lodged but not ruled upon until just prior to submission;
• Outside training for judges and OCTC counsel may help with the undue consumption of time pertaining to evidentiary objections.

But these comments don't address the backlog. Towery's alternative for cleaning it up might have been the "fire sale on settlements" disavowed by Executive Director Dunn, an alternative bound to be unpopular with the State Bar's prosecutory wing—and wildly popular with the State Bar defense establishment (the "respondent bar," who participate in deliberations.)

85th Installment. California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence

kanBARoo court differs from most other judicial-system criticisms in declining to demand more prosecutions. Often critics respond to inequities in justice's administration by demanding prosecutions of the truly guilty, not just relief for the unjustly prosecuted. No doubt, one might derive satisfaction from reporting judges or gloating over their comeuppance, but this satisfaction comes at the expense of consistency and principle: advocacy of prosecution by a corrupt, oppressive, or incompetent agency contradicts the intended defense of due process. Only perpetration of crimes so great they overshadow the State Bar's defects—John Yoo is the only example that comes to mind—justifies supporting (never advocating!) state-bar prosecutions. kanBARoo court doesn't advocate prosecution even in the extreme case of Ronald N. Gottschalk or Melanie J. Lawrence. Nor did I report Lawrence's criminal misconduct to the State Bar as some advised; I refused even to report Kim and company to the police, as the state's prosecutorial authority differs from that of the state bar in its greater competence, not greater inclination to justice. Principled opponents of authoritarian oppression don't beseech the oppressive authorities!

Therefore, readers shouldn't interpret the following critique of failure to prosecute prosecutors as a demand for their prosecution. To avoid the misunderstanding of an important principle, I emphasize this caveat, even at the expense of the main message; but principles don't preclude publicizing and analyzing failures to prosecute, omissions laying bare the state-bars' mainsprings. With that caveat, I proceed with clear conscience to describe the California State Bar's astounding failure to prosecute prosecutors

Recently, the Northern California Innocence Project released a study of prosecutor misconduct staggering in demonstrating prosecutory bias. One fact stands out in this report: over the past decade, the State Bar has disciplined only six prosecutors for misconduct in prosecution. (Hat Tip to The Crime Report.) Business & Professions Code sections 6086.7 and 6086.8, subdivision (a), require judges to report misconduct that affects trial outcome, and mandatory "reported events" by judges produced approximately one thousand reports over the period studied, but of these, only six led to state-bar sanctions of prosecutors in criminal cases. For most practical purposes, we can justly say the California State Bar refuses to prosecute any prosecutor. (The only exception is the recent prosecution of four prosecutors, comprising the bulk of the six. This prosecution resulted from a power-struggle within the state bar that led to Chief Trial Counsel Scott Drexel's ouster and represented a crude attempt to appease the discontented state-bar defense establishment.)

The Mark Sodersten case shows how this refusal plays out, how the free pass given prosecutors is intentional rather than (somehow) merely negligent. Sodersten is one of the great success stories of the Northern California Innocence Project, which seeks exoneration for victims of the criminal-justice system who didn't commit the crimes charged. The California Court of Appeal freed Sodersten based on evidence the Innocence Project discovered proving he was the victim of withholding evidence by the prosecutor, who himself had interviewed the potentially exonerating witness, so there was no legitimate question about the concealment's willfulness. This prosecutor was a real fiend; can you imagine asking for the death penalty for a defendant who you know was convicted on falsified evidence? Since the evidence was exonerating, one can go so far as to say this prosecutor demanded the death penalty for someone he knew was innocent.

 
The California State Bar couldn't avoid opening an investigation of Philip Cline, then a Tulare County assistant district attorney, but it refused to find culpability, claiming insufficiency of evidence, a deficiency deterring the State Bar in no other prosecution. The free pass allowed this prosecutor to flourish: this attempted murderer is now district attorney for Tulare County.

Sodersten shows the California State Bar isn't merely lax about prosecuting prosecutors but actively resists finding prosecutors guilty. Opponents of the State Bar establishment have an interest in knowing why. One theory, advanced by the loyal opposition of the California State Bar establishment, the Association of Discipline Defense Counsel and its leader, David Cameron Carr. Carr, claims that the state bar is really a consumer-protection agency rather than an enforcer of ethical principles, implying that the disciplinary mechanism within government agencies adequately protects the public. The theory can't explain the intensity of resistance to prosecuting prosecutors; it explains at most a lack of emphasis on such prosecutions. Carr would have it that the State Bar doesn't consider prosecutorial misconduct important enough to prosecute, a premise that doesn't explain outright refusal to prosecute. The data also refute a theory I proposed, that the State Bar is unconcerned with prosecuting "government attorneys" because there's no money in it, the State Bar having an interest in the trust accounts of civil attorneys, as it retains the interest on these accounts. This too explains only lack of concern, not determined avoidance.

"Government lawyers" is a misleading abstraction. I haven't seen figures on prosecutions of other "government attorneys;" the record concerning public defenders would be particularly interesting. But even if the prosecution rates are low across the board for lawyers working for government, this 1) still doesn't explain active resistance to prosecution of prosecutors; and 2) doesn't explain why common sense and the obvious need for discipline for misconduct of the sort Philip Cline perpetrated doesn't compel making an exception to any rule exempting "government lawyers," since the imperatives that apply to prosecutors don't apply to other classes of "government lawyers." An unethical monster like Philip Cline is a moral threat whether or not he leaves government service. No client should trust such a creature; none should have to risk association with him.

Prosecutorial solidarity is the only tenable explanation I find for the State Bar's avid refusal to prosecute prosecutors. The State Bar, after all, effectively is composed of prosecutors, and the boundary between prosecutors in general criminal practice and State Bar "trial counsel" is porous, the State Bar the refuge of the most incompetent of the lot, not necessarily the most vile. The prosecutors in the State Bar have a stake in not seeing other prosecutors prosecuted because, in general, prosecutors often engage in misconduct, particularly State Bar prosecutors. While the State Bar has no shortage of hypocrisy, it knows its self-interest. Once prosecution of prosecutors becomes common, why wouldn't a public outcry demand prosecution of "trial counsel"? By all indications, serious misconduct by these bar prosecutors is a common occurrence, even the norm. Every prosecutor has an interest in such misconduct getting a free pass.

The evidence of State Bar misconduct is rife throughout its cases, but the most rigorously proven instance happens to have occurred in my State Bar case, where "deputy trial counsel" Melanie J. Lawrence actually destroyed documents to obtain dismissal of my petition for review. Precisely because the evidence is circumstantial, hence not dependent on testimony, the proof of her misconduct is airtight. Readers can verify this tolerance for misconduct by bar counsel all the way from the nefarious Judge Honn to an indifferent California Supreme Court. Lawrence and the attorneys representing the state bar consistently refused to address the charges of misconduct; with proof so clear, they determined to stonewall. While my briefs pounded away on the subject, the State Bar's briefs ignored my allegations. They needed to craft no arguments; they simply pretended my claims were absent. Subsequently, no investigation was opened, despite the proof I briefed.

While Philip Cline is district attorney of Tulare County, Melanie J. Lawrence continues in employment by the State Bar. The State Bar doesn't prosecute prosecutors for misconduct because, out of self-interest and empathy, it favors such misconduct.

Interlude 15. Disbarring the State Bar

In an astonishing but deserved worsening of fortunes for the California State Bar, Governor Arnold Schwarzenegger vetoed the State Bar appropriations measure. (See http://tinyurl.com/yla9zlo.) Without funding the State Bar is dead, one of the most favorable potential outcomes. Schwarzenegger vaguely demanded reforms, his motives no doubt predominantly fiscal, but Schwarzenegger should be held to his commitment. Since no serious reforms will be forthcoming, Schwarzenegger should axe the State Bar, which is so broken it does much more harm than good.

The veto confirms that the political establishment repudiated Drexel's extremism by removing him, and it continues to punish this arrogant, out-of-control police agency. The themes Schwarzenegger sounded show that critics' attacks have gained foothold in public-opinion's mainstream. Schwarzenegger mainly objected that the State Bar has not proven itself above reproach, most blatantly in the Sharon Elyce Pearl case, where a clerk embezzled 6.75-hundred-thousand dollars over eight years while the State Bar recklessly disregarded its duty to secure entrusted funds. Publicizing the Office of Chief Trial Counsel's statutory responsibility for the embezzled funds, kanBARoo court uniquely argued that the case exposed the State Bar's ethical hypocrisy.

69th Installment. What (the absence of) medical ethics can teach legal ethics

Medicine — which in California had its Drexel era back in 1991, inflicted by the Legislature — is ahead of law in the arbitrariness and malice of its policing mechanisms. The advanced morbidity of both medical ethics and its supposed enforcement holds lessons for the direction of legal ethics.

After the peer-review "reforms" of the late 80s and early 90s, peer-review process has increasingly dominated physician discipline. The "reforms" provide nearly absolute immunity for those accusing physicians and those adjudicating physicians' alleged infractions. Peer review can deny hospital privileges, often tantamount to professional annihilation because of the tight connections between the public and private discipline bodies.

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but not specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.

(http://tinyurl.com/y8nyoh6.)

The immunity of all involved in an accusatory process amounting to a trial unconstrained by any law of evidence has made the peer-review process a breeding ground for anticompetitive conspiracies and, particularly, the persecution of doctors who advocate for patients or retain a vestigial desire to practice competent medicine. The abuses against doctors with integrity have earned the designation "the disruptive doctor doctrine," under which whistleblowers who complain about the quality of care are tried on trumped up charges.

In my experience, it is never those physicians who regularly place patients at risk with questionable medical practices or outright negligence that are the ones who raise concerns about patient care. It is those hotheaded physicians who are passionate about patient care and the quality of medical treatment who raise hell, take their grievances to hospital administrations, and demand change. And unless these same physicians are economically valuable to the hospital and/or have considerable political clout then they might as well kiss their careers goodbye.

(C. Rangel, M.D. at http://tinyurl.com/y98bc34.)

Corrupt medical-ethics' policing feeds from the initially low level of medical ethics, itself in part product of the number of students pursuing medical study hoping for enrichment, in part product of policing that was always guild oriented and never oriented to ethics based on patient loyalty — as many longstanding practices indicate; practical medical ethics accepts that physicians will shirk basic duties to their patients when in the physicians' interests. Practicing "defensive medicine," for example, has long been acceptable, even mandatory. In countenancing defensive medicine — certainly never disciplining it — physicians ratify methods that don't benefit, indeed, even harm the patient, at least causing inconvenience, often worse. The "defensive" physician is disloyal to his patient and probably lies to the patient about the tests' medical necessity. Spacing office visits for the sake of revenue collection — because, for some anachronistic reason, physician fees are tied to patient contact — is another professionally accepted practice that is disloyal to the patient. The patient is, again as a rule, lied to about the medical necessity of the contact but, increasingly, setting office visits for billing purposes is cynically accepted as realistic. ("Crackpot realism," in C. Wright Mills's phrase.) Looked at from an objective ethical standpoint — without succumbing to the root vice of community standards for a scientific activity — one should say that any doctor doing any of these things should be hauled before a medical board for moral turpitude in medical practice — if only medical ethics were about patients' interests or the doctor's fundamental honesty in patient dealings.

Deterioration in medical ethics accelerates. Most stunning have been the revelations that psychiatric pharmaceuticals are usually validated only by studies the drug companies finance, design, and control. This corruption implicates renowned professors at the nation's foremost teaching hospitals and medical schools. The defective policing of medical ethics has stemmed from hysterical reaction to real gaping defects in physicians' ethics but more directly from the refusal of physicians on peer-review panels to take ethical responsibility for patient welfare, the universal acceptance that peer-review panels will provide competent and sincere review only if the reviewers have immunity from any resulting civil litigation. The objective ethicist may ask why should physicians feel free to disregard their duties to patients and their duties of truthfulness in matters concerning patient welfare because of the possibility they may be sued for defamation? An incredible ethical laxity; if physicians participating on a peer-review panel lie about their conclusions to avoid possible litigation, this self-serving conduct is an ethical violation by any standard true to ethics' roots in loyalty to patient and honesty in matters affecting the patient's welfare.

The decline of medical ethics consists of disregard for loyalty to patient and honesty in matters involving patient welfare. The deterioration involves putting economic self-interest and institutional interest above patient loyalty and truthfulness, an emphasis not deflected by increasingly harsh physician discipline; indeed, furthered by discipline for the wrong offenses. Doctors are increasingly disciplined for failure unconnected with loyalty or truthfulness, the twin pillars of genuine professional ethics: in one typical instance a doctor was disciplined for failure to report what the authorities believed was child abuse of a patient's neighbor. (See http://tinyurl.com/y8nyoh6, supra.) Harsh and arbitrary discipline meted out by the peer-review panels and medical boards reinforces physicians' disloyalty to patients by punishing doctors for failures of dual loyalty to third parties, including state authorities. The law analogy is disciplining attorneys because their conduct successfully advances their clients' interests: discipline to uphold the authority of judges and respect for bar.

Interlude 11: Drexel and the DAs

Chief Trial Counsel Scott J. Drexel's removal has so demoralized the California State Bar bureaucracy that its trial counsel have succumbed to temptation to do the unthinkable: debate a former respondent. The discussion was at Crime and Federalism, a proprosecutorial blog, which bemoaned Drexel's firing. To start toward the end with comments by a current state-bar respondent, an elderly and disabled attorney, who describes his ordeal before the State Bar:

Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish. I know enough from experience the Drexel marching order is a "take no prisoners" operation that justifies its inquisition by parroting "We're protecting the public." Anybody critical of Scott Drexel must be opposed to protecting the public. Right? Drexel's M.O. has been to squander millions in building an empire devoted to destroying the sole practitioner, preferably elderly and disabled,while the big firm lawyers only find their licenses lifted due to federal court convictions. Do not believe the State Bar prosecution press releases as they are strictly public relation promotions like the above.

Attorney William Wells later added:

Further to the Scott Drexel playbook. During a continued trial I sufferred multiple fractures from a fall that required surgical repairs, hospitalization and bed confinement so I obtained a Declaration from a physician aware of these facts and filed it with a motion to continue in the routine manner in such events. Unknown to me, the Deputy trial counsel Erin M. Joyce secretly issued a subpoena for the personal appearance in court of my physcian over a two week span and caused a week of stalking, trespassing and harassment by a State Bar Investigator of my physcian at his home, office and hospital. Despite no personal service, Erin Joyce, trial counsel, caused to be prepared a false Declaration of personal service that only surfaced when a Motion to Quash was filed by my physcian and disclosed that the Declaration of Service was on its face totally illegal. The court agreed and granted the Motion to Quash but no sanctions or attorney fees and no redress by a tort action for abuse of process. If I need a Declaration from my physcian what would be your response? and his response? Who could blame him? This is an example of Nifong-Drexel protecting the public. [My emphasis, for legal significance.]

My only disagreement with poster William Wells is: "Unless you have experienced the tactics used by the State Bar, you cannot appreciate the Mike Nifong mentality that permeates the process from start to finish." To the contrary, I think readers can appreciate the thuggish mentality of the State Bar simply by reading its contributions to the discussion. The State Bar communicates with telltale signature rhetoric, immediately conveying how it views its function.

The first commenter was a former State Bar prosecutor who recycles his public relations blurb for Drexel. His boilerplate included this observation: "Not one of the cases I brought to trial resulted in a finding of no culpability." This half-truth is the standard argument for Drexel's project of public posting from a case's inception, and I pointed out that the relevant statistic — even if you trust the Bar Court to provide the criterion — is the percentage of charges dismissed with prejudice, since public posting accuses the attorney of the full set of charges. The Bar Court dismisses the majority of charges!

Normally, the State Bar wouldn't compromise its arrogance or risk exposing its bad motives and poor competence by intervening in a public discussion. The State Bar is so unused to contention that it can't state a rational argument. Instead of dealing with my point about the dismissal with prejudice of most charges, never answered, the at-the-time-anonymous poster referred readers to my State Bar member record; nothing more except to put "position" when referring to "Mr. Diamond's position" in scare quotes.

Back to my quibble with William Wells concerning the need for first-hand experience to appreciate the State Bar's oppressiveness. From the ad hominem method of obfuscation alone, one could already surmise much. The signature use of scare quotes in place of arguments sufficed to categorize the poster as a bar prosecutor. When he replied to my response, which pointed out his refusal to identify himself while attacking me personally, he compromised and signed with his first name, "Patrick": my old friend Supervising Trial Counsel Patrick O'Brien. O'Brien was in charge of my case at the beginning. After he made some intemperate remarks, such as alerting me that he would report my refusal to comment orally as an admission, he transferred the case to our prosecutrix, Melanie J. Lawrence. Apparently the bar thought the case needed a "woman's" touch. [Scare-quote irony intended.]

Apart from these hints to William Wells and others on how to detect oppression at a glance, I want to deal with one other question the Crime & Federalism article raises concerning the Drexel removal: Drexel's prosecution of several San Diego deputy district attorneys. District attorneys usually avoid any bar investigation, but the reason isn't that the bar is reluctant to prosecute district attorneys. The judges, through California's Chief Justice of the Supreme Court, are the only sufficiently centralized authority capable of exerting major power over bar affairs, and district attorneys' withholding evidence doesn't please Chief Justice George. The reason that the State Bar emphasizes civil attorneys is financial. The State Bar zealously enforces attorney trust accounts because the State Bar is the their hidden beneficiary: it receives the interest on most accounts, and the State Bar's authority to disburse these funds augments its power; any trust account violation, any instance of commingling in regular accounts, takes money at the State Bar's disposal. While the client suffers delay following misappropriation, the State Bar is the loser. Misappropriation and comingling are the State Bar staples and the trust accounts the glaring conflict of interest, but, recently, court-order violations have been prominent. To understand the change, more important than the rise and fall of Chief Trial Counsel Drexel in the California bar is the rise of Chief Justice George in the California courts.

The problem with the district-attorney prosecutions isn't inherent wrongfulness. Despite the hypocrisy of the State Bar's prosecuting other prosecutors for withholding exculpatory evidence, district attorneys who withhold evidence and who violate court orders by lying deserve disbarment — harsher discipline than imposed. The problem is the tardiness of these prosecutions, taking place under the State Bar's unlimited statute of limitations for cases the Bar claims to initiate. The lateness shows the prosecutions were at the behest of judges who continued to be dissatisfied with these officers of the court after the ordinary statute of limitations expired. The state-bar-establishment's loyalist defense wing, not the DAs, made the effective response to the district-attorney prosecutions — confirmed by the direction of a phone call preceding the ouster: district attorney to influential bar-defense-counsel Margolis.

Interlude 10. California State Bar Decapitated

The State Bar board of governors fired Chief Trial Counsel Scott J. Drexel yesterday. The discharge is effective next Wednesday; Drexel's contract won't be renewed. State Bar opponents can celebrate Drexel's fall as partly due to their efforts, but they shouldn't expect fundamental change in State Bar practices, which are rooted in its structure, its rules, the provisions of the State Bar Act, and the outlook of the national state-bar establishment.

Scott Drexel fell in a rift between the California State Bar establishment's prosecutorial and defense wings. The various grades of bar trial counsel support Drexel because he allowed the junior prosecutors to run rampant over attorneys' rights, but Drexel's retributionism hurt business for the State Bar's defense wing. Attorneys specializing in State Bar defense are predominantly former state-bar trial counsel. They remain genial with their erstwhile colleagues, who favor these tainted defense counsel in plea bargaining. The State Bar trades lesser discipline — truly an irrelevant consideration for most respondents, whose careers are destroyed by any public discipline — for respondents coached against contention. Under Drexel the deals have been fewer, disadvantaging the State Bar defense establishment and propelling it into a separate professional organization.

Likely the breaking point for the board of governors — which decided in an undemocratic closed meeting — was Drexel's attack on some lawyers as mortgage scammers. Drexel without clear authority required dozens of attorneys to answer inquiries, although he charged few.

Drexel prosecuted more often, seldom settled significant cases, and investigated extravagantly to justify the State Bar's budget during this economic depression. Unfortunately, more than expressing concessions to opponents of State Bar oppression, the rift between Drexel and the State Bar staff, on the one side, and the state-bar defense establishment and other attorneys whose income Drexel crimps, on the other, expresses interests competing for California's diminished fortunes.