83rd Installment. Fine Finally Free: What's the Real Lesson about California Judges?

The Los Angeles Men’s Central Jail has released Richard Fine, held in coercive confinement for 18 months for disobeying a court order to disclose his financial records. Fine’s intransigence was a victory only in a personal sense. Although speculation about Judge Yaffe’s motives in ordering the release is rife in the Fine camp, Yaffe ordered Fine’s release because he's retiring; he isn’t retiring because of the Fine situation.

Judge Yaffe’s stage-managed retirement illustrates why you don’t have to invent judicial conspiracies to apprehend judges’ ethical hypocrisy, despite their being frequent impugners of lawyers’ ethical integrity. Yaffe is mounting a runaround of the California constitutional provisions that democratically check the governor’s power to appoint judges by subjecting them to retention elections. (Cal. Const., Article VI, section (c).) He will exploit the loophole exempting interim appointments from this requirement. Had Yaffe resigned a month later at the end of his term, a retention election would check the governor in filling the vacancy.

Judge Yaffe is an egregious judicial officer, but we would unjustly condemn him for gratuitously resigning a public trust (remember, he's a superior-court judge, not Sarah Palin). We would treat him unfairly by singling him out even for circumventing a constitutionally authorized legislative check on executive power. He isn’t exceptional in staging this travesty, for it’s the norm; nor is this flaunting of partisanship likely to change any appointment—making the judges’ crass sell-out to petty partisanship more degrading.

Since Yaffe wants to retire because he's old, and opportunistic early resignation is customary among our half-civilized judges, lawyers will immediately understand why Yaffe released Fine. Yaffe definitely became aware of the portending scrutiny by a new judge, since Fine had just moved for re-assignment based on Yaffe's impending retirement. Informal norms press judges to wrap up business before retiring, to avoid making work for other judges. Fine’s motions and appeals could harm Yaffe’s reputation, under a judge who’s irritated with the chore. Enjoying less personal influence after he retires, Yaffe should even fear reversal.

Some of Fine’s supporters, including the always truth-disrespecting Leslie Dutton, base their conspiracy theory on a claim found in Fine's briefs, asserting a U.S. Constitutional limit of five-days confinement for contempt. Dutton even invented an acronym for the hearing that supposedly should have enforced this nonexistent limitation: “FARR hearing”: her complete confusion about a case where the petitioner bore a similar surname. (See Farr v. Pitchess (1973) 409 U.S. 1243.) This falsehood disserved Fine by implying that coercive confinement is an illegal, aberrant practice victimizing Fine alone, whereas it's really an ensconced threat to lawyers and the public. As far as any pressures promoting Fine’s release, the contents of Judge Yaffe’s order support the import of the length of Fine's confinement, the only issue where Yaffe's order revealed vulnerability.

Fine and his supporters, wrapped up in these confusions or prevarications, led with their untenable fraud-by-the-courts theory. This Fine–Judicial Watch theory doesn’t itself scare members of the state-bar establishment, but the course of events does nonplus them. The California Supreme Court’s motion to dismiss Fine's civil lawsuit denigrates Fine's legal theory, through the office of that court’s attorneys, Benton, Orr, Duval & Buckingham:

Although Fine trumpets the various actions that he has filed against judicial officers as evidence of his successful prosecution of alleged judicial corruption, he has never prevailed in any attempt to disqualify a judicial officer (state or federal) based solely on the receipt of “local judicial benefits.” [Citations.] Moreover, Fine’s reliance on his strained interpretation of Sturgeon v. County of Los Angeles, 167 Cal.App.4th 630 (2008) is without legal or factual support. The Sturgeon decision specifically found that the payment of local judicial benefits was neither a waste of taxpayer money nor a basis to seek recusal of a judicial officer receiving such benefits. [Citation.] (“Defendant, The Supreme Court of California's Notice of Motion and Motion to Dismiss Complaint,” p. 3, fn.2 [http://tinyurl.com/33amqcz].)

This language shows both the courts' distance from Fine’s interpretation of Sturgeon v. Los Angeles County and, despite the legal unformidability of Fine’s “strained” theory, their wish to forgo stock taking. As Savannah S. Winslow points out in the pro-Fine blog Right Trumps Might, Sturgeon made no specific findings on recusal! The Legislature’s failed attempt to immunize Councilmen and judges retroactively for providing and accepting the unlawful benefits points to the same avoidance. While grant of immunity doesn't prove grantees' criminal guilt or civil liability (contrary to Fine and supporters), it demonstrates an appearance of impropriety. The Legislature immunized the parties to avoid litigation, not necessarily liability, but the Legislators expected citizens to litigate only because the benefits appeared improper.

Contrary to the tenor of the California Supreme Court’s attorneys’ comment, Fine struck effectively, if blindly, against the California judiciary's moral authority and, for some correct reasons, damaged the Los Angeles judiciary’s reputation. While the judges broke no criminal law and committed no tort, they created an appearance of impropriety by accepting a contribution they knew was probably illegal (what with their being judges). Out of some 400 judges in Los Angeles County, none refused the benefits or protested to bring the remuneration scheme within the state’s administrative-law provisions. During some twenty years of receiving these legally dubious benefits, the judges allowed the practice to continue.

No judge, not one, brought analytic acumen or ethical sensitivity to bear on this irregular practice, where the judges personally benefited. Even as applied to judges, a principled ethical code would sanction only actual impropriety, not its mere appearance, but most jurisdictions’ codes of legal ethics and all codes of judicial conduct impose a duty to avoid the appearance of impropriety, a norm most judges accept. kanBARoo court alone pinpoints the moral contradiction of hundreds of judges who lived comfortably with impropriety’s appearance, while they endorsed the no-appearance-of-impropriety standard; the judges know the public recognizes their hypocrisy.

59th Installment. Attorney suspension for disrespect of court by proxy

A federal court issued a one-year suspension to a Louisiana attorney who disrespected a magistrate's law clerk. The attorney snapped at the annoying clerk, magistrate's delegate for a post-hearing telephone inquiry about his absence. The clerk had baited him with carping rhetorical questions and condescending repetition of his name, irritating the tired attorney. Here's a taste of his curtness according to the appellate opinion, a quick 10-page read at http://tinyurl.com/cujt29:

Ms. Blancke told Mr. Moity that there was no reason to get upset, that this was a professional phone call to assess why he had not returned the court’s phone calls and why he’d failed to appear at a court-ordered conference for the purpose of the court’s assessment of sanctions. At some point, Mr. Moity cut Ms. Blancke off in mid-sentence, yelling “Stop saying ‘Mr. Moity.’ You’ve said my name about 5 times, I know my name!”

The 5th Circuit’s denial of Moity’s appeal concluded:

Moity further argues that disbarment was an inappropriately severe punishment for his “curt conversation,” as he calls it. The conversation reported by the magistrate judge’s law clerk displayed severe disrespect to the court by the anger and harsh tone shown to a representative of the magistrate judge. In re Moity, No. 08-30826 (5th Cir. April 7, 2009) (Smith, Stewart and Southwick) (per curiam; unpublished).

Other alleged ethics infractions aggravated the offenses charged against R. Michael Moity Jr. The 5th Circuit held he testified dishonestly at the contempt hearing, but the facts don't clearly and convincingly prove Moity intended deceit. Moity’s brief accused the District Court of misconduct by discussing the case ex parte with another judge who had held Moity in contempt, accusations for which the District Court charged him with impugning two judges' integrity. Even the 5th Circuit found this charge unswallowable yet neither affirmed nor reversed it.

Abuse of disciplinary authority so gross it disturbs even the State Bar Establishment (see, for example, http://tinyurl.com/cvrbaa) can reveal State Bar oppression's intensifiers. The Western District of Louisiana disciplines attorneys using unique procedures letting any judge initiate and decide attorney discipline. Instituting practices magnifying complaining-judges' influence performs an experiment relevant to other jurisdictions, where judges' complaints start many disciplinary proceedings. The California State Bar, by rule, must investigate a judge's complaint, and the State Bar, by habit, defers to the complaining judge on the ultimate question, even if the complaint apparently arose out of a personality clash or a zealous attorney's warranted resistance. The Richard I. Fine case, notably, involves complaints by judicial officers, such as Judge Yaffe and Commissioner Mitchell, both reputed vindictive and unable to admit error. The State Bar’s readiness to prosecute on a judge’s complaint expresses not only its opportunism and authoritarianism but also a strain of its core pathology: finding ethical culpability for impropriety’s appearance, as visited by a judge accusing an attorney of misconduct.

The 5th Circuit should publish a legal outcome so novel. The courts — wanting to render agreeable decisions without being held to principles — undemocratically decline to publish weak opinions that would make new law. The opinion dodges whether alleging judicial misconduct constitutes a disciplinable offense: subtracting one third of the charges should reduce the discipline's severity. The 5th Circuit, affirming the entire aggravation without deciding part of its justification, didn't resolve the presented controversy.

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.

kanBARoo Court. 46th Installment. Origins of the Appearance-of-Impropriety Dogma

Understanding the California State Bar's dysfunction may lie in legal doctrine's historical course. State Bar jurisprudence reached its apogee with In re Fahey (1973) 8 Cal.3d 842, immediately descending thereafter, and accelerating with In re Rohan (1978) 21 Cal.3d 195, irresistibly influenced by conformity with the national Bar establishment. (Id., at p. 204 [citing "the recommendation of the American Bar Association, as promulgated by the Standing Committee on Professional Discipline"].) Rohan marked the ascendance of the mere-appearance-of-propriety doctrine, central to present State Bar law: bureaucratic reflex, moralism, and legal indifference.

The tabulation of "Observations and Inferences" at the 40th Installment" displays the centrality of the Bar's commitment to discipline for the mere appearance of impropriety. Discipline expressly and tacitly based on this doctrine explains most of the State Bar's other faults. No legal sophistication, only bureaucratic intransigence, is needed when mere appearance suffices to constitute a disciplinable offense. To be accused is to be guilty because leading to accusation, the lawyer's conduct has appeared improper.

In re Fahey, a case dismissed because the court found moral turpitude absent, involved a respondent who didn't file federal income taxes for three years. As Fahey stated and earlier cases suggested, the Supreme Court interpreted Business and Professions Code sections 6101 and 6102 to mean a "[r]espondent is subject to discipline only if he committed a crime involving moral turpitude ... or an act involving moral turpitude, dishonesty, or corruption." (Fahey, at p. 849.) The court defined moral turpitude as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (Ibid.) While in itself vague, the moral-turpitude standard gained precision in a previous case, which held, "To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law." (In re Higbie (1972) 6 Cal.3d 562, 570.)

Fahey, still good law except on the point Rohan overruled, has holdings countering today's State Bar practice. As against cases inferring turpitude from repetition, for example, Fahey held, "There must be more than mere repetition of the same acts to differentiate the offending attorney who is guilty of moral turpitude from the one who is not." (Fahey, supra, at p. 851.) Most importantly, Fahey criticized the:

Several courts [that] have invoked in support of this ground for discipline the precepts of the former Canons of Ethics of the American Bar Association "to uphold the honor and to maintain the dignity of the profession" (Canon 29) and to "observe ... the statute law" and maintain "fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen." (Canon 32)" (Id., at pp. 852-853.)

Offenses that do not involve moral turpitude or affect professional performance should not be a basis for professional discipline simply because they may in some way impair the public image of the profession. Otherwise the imposition of discipline may tend to be influenced by the degree to which the offense has become known to the public. [Citation.] Our standard of moral turpitude depends not on popular impressions but on the violator's own motivation as it relates to his moral fitness to practice law. [Citation.] (Fahey, supra, at p. 853.)

In contrast, Rohan's lead opinion said — over-ruling Fahey's narrow moral-turpitude standard:

An attorney as an officer of the court and counselor at law occupies a unique position in society. His refusal to obey the law, and the bar's failure to discipline him for such refusal, will not only demean the integrity of the profession but will encourage disrespect for and further violations of the law." (Rohan, supra, at p. 203.)

In dissent Acting Chief Justice Tobriner, joined by Justice Mosk, pointed out:

An offense may breach the defendant's duty to society, yet bear no significant relation to fitness to practice. A leading example is Hallinan v. Committee of Bar Examiners ... in which we admitted an applicant to practice law despite prior convictions for assault, battery, disturbing the peace, and trespassing. Conversely, a relatively minor offense may reflect on the practice of law..." (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk continue:

The requirement of a specific nexus between the attorney's conduct and the practice of law should not be evaded by assertions that such conduct demeans the integrity of the legal profession or constitutes an example which may encourage others to violate the law. Such assertions merely concoct a method by which a transgression unrelated to legal practice can be magnified by unproven and hypothetical conjectures as to its effect on the opinions of others. (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk argue that a broader standard for discipline violates the constitutional principle that the California Supreme Court repeatedly enunciated:

that a person can be barred from the practice of his profession only for reasons related to his fitness or competence to practice that profession [Citation]: to allow discipline for unrelated conduct on the ground that it demeans the integrity of the profession would detract from that fundamental principle. (Ibid.)

The influence of the mere-appearance-of-impropriety doctrine continued to mount. In re Kelley (1990) 52 Cal.3d 487 imposed discipline for repeated intoxicated driving. The Kelley court stressed the way impropriety looks to others, stating:

We think it clear that attorneys should realize that repeated failure to conform their conduct to the requirements of the criminal law and court orders specially imposed on them may call into question their integrity as officers of the court and their fitness to represent clients." (Id., at p. 497.)

Justice Panelli dissented vigorously, calling for dismissal, in words that any respondent opposing State Bar oppression should recall:

In imposing discipline for conduct which may affect petitioner's future performance of her duties, although it has not yet affected her performance, the majority embarks on a dangerous journey… We simply have no right to declare ourselves higher guardians of the 'public safety' and increase the criminal law's punishment for the sole reason that this particular driver happens to be a member of the bar… To discipline this attorney for conduct that may in the future impair her practice of law, without disciplining all attorneys for the same reason, presents insurmountable problems of consistency and fairness. (Kelley, supra, at pp. 500-501 [Dissent, Panelli, J.])

(See also, 27th Installment, "Should the Mere Appearance of Impropriety Constitute an Ethical Infraction.")

kanBARoo Court. 27th Installment. Should the mere appearance of impropriety constitute an ethical infraction?

If the State Bar is competent only to smell smoke and presume fire, the Supreme Court may tolerate the Bar's incompetence because under the prevailing concept of legal ethics the appearance of impropriety constitutes an ethical infraction. Under Canon 9 of the American Bar Association Model Code of Professional Responsibility, "A lawyer should avoid even the appearance of professional impropriety." Canon 9 is persuasive in California but not the law, and the most searching analyses have delivered withering criticism. The California Court of Appeal held:

[T]he appearance of impropriety test is no more than "a simple and soulful rubric that seems to make intuitive sense' but whose alluring charms 'are only surface.' [Citation.] … [I]t is unclear as to whom the conduct in question must appear improper. Some courts think it is 'the public' or an 'average layman." … Still other courts believe the opinion of "the bar" is a relevant consideration. ... Even if there were no conflict as to whom the conduct of an attorney must appear improper, judges lack the empirical data necessary to accurately discern the views of the appropriate group…. "[C]ourts lack both access to reliable facts and a workable method for thinking through, on a case by case basis, the question whether the particular result sought by one or the other of the parties will increase, decrease, or leave unaffected the general level of public or client confidence. [Citation.]" (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 307.)

The apparent-impropriety concept remains influential, as shown by the dissenting opinion the cited case bears, as well as another California case that criticized the position quoted because the opinion:

[F]ocuses attention on the end result of the challenged conduct without including the paramount concern of preserving public trust in the scrupulous administration of justice and the integrity of the judicial proceedings." (In re Complex Asbestos Litigation (1991) 232 Cal.App. 572, 591-592.)

While all courts agree on the importance of preserving public trust in the courts and attorneys, they have not overcome the Gregori court's epistemic objections. It is reasonable to assume that preventing actual improprieties will favorably affect the public's perception of the law, but no reason has been provided for thinking that preventing perceived improprieties helps, absent actual improprieties. There is reason to think such attempts to prevent merely perceived improprieties backfire, because a perceived-but-not-actual impropriety banned by law or rule is also a limitation on clients' freedom to receive legal services on their terms, imposed without clients receiving offsetting benefit. Client interests are sacrificed for the system and profession's intended good.

The appearance of impropriety is even more dangerous as concept than rule. It serves as a misleading justification, hiding real significance, sometimes concealing important strengths, sometimes deficiencies. The apparent-impropriety rationale conceals, for example, the real purpose of rules against former-client conflicts of interest, a good rule, capable of rigorous and principled justification, as explained by the Supreme Court:

Clients are entitled to vigorous and determined representation by counsel. It is difficult to believe that a counsel who scrupulously attempts to avoid the revelation of former client confidences--i.e., who makes every effort to steer clear of the danger zone--can offer the kind of undivided loyalty that a client has every right to expect and that our legal system demands. Rule 5 operates to preclude any impediment to the fulfillment of an attorney's professional obligation to his client by proscribing any conflict of interest in his representation of past and present clients. (Anderson v. Eaton (1930) 211 Cal. 113, 117.)

Yet, this sound justification is muddied by the immediately following comment:

It is better to remain on safe and secure professional ground, to the end that the ancient and honored profession of the law and its representatives may not be brought into disrepute." (Ibid.)

Ask lawyers about justifying the rules concerning past-client conflict of interest, and you will get back appearance of impropriety. No one will remember the real analysis presented by the Anderson court. Yet lawyers must know how to draw the line correctly, because every court in California agrees that the appearance of impropriety alone is insufficient.

That is, every court except the California State Bar Court. Without acknowledging it, the Bar Court's procedures derive from the apparent-impropriety rule, because only such a rule could justify the superficial basis for charges, a basis that proves only the appearance of impropriety. Only the appearance-of-impropriety rule can explain the widespread assumption that if an attorney is charged, he must be guilty. The Enforcement Division of the State Bar has won this presumption of guilt by tautology rather than demonstration. If the appearance of impropriety is itself impropriety, as ABA Canon 9 demands, then charged is tantamount to guilt. (See also, 46th Installment, "Origins of the Appearance-of-Impropriety Concept.")

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.