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.
Some knowledge comes two ways: one involving knowing that and the other not; one can know some things by their name or by another: transparent knowledge, contrasted with opaque knowledge. The 42nd Installment interpreted the required knowledge for Business and Profession Code section 6103 willfulness as transparent because I’m unaware of any law using an opaque-reference standard. Here’s a better reason, with more exact conclusions.
I find no authorities making the connection, but the Penal Code defines the key word “willfully,” and the Penal Code definition decides whether transparent or opaque reference applies, the statute and the cases construing it being the only legal authorities addressing the knowledge that Bus. & Prof. Code, § 6103, willfullness requires. Penal Code section 7, subdivision 1, defines willfulness, when not otherwise defined by statute, as follows:The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.
The first case People v. Honig (1996) 48 Cal.App.4th 289 examined Penal Code section 7-willfullness knowledge requirements, in a criminal conflict of interest case. The Honig court considered three alternative standards for knowledge of a contract held to expose a public official to a conflict of interest. The court rejected that willfully creating a conflict of interest required that defendant know that the acts were illegal. It is well-settled that knowledge of the existence of a law prohibiting the conduct isn’t ordinarily an element of a willful offense, this irrelevance being the substance of the popular rule, “Ignorance of the law is no excuse.” The Honig court also rejected the standard at the other, most inclusive, end of the spectrum. The defendant does not become culpable for willfully creating a conflict of interest merely because he knew the terms that created the conflict. The inclusive definition would make conflict of interest a kind of strict liability offense. The court accepted the third, intermediate, candidate: willfully creating a conflict of interest involved knowing that the contractual terms created a conflict of interest. The standard for willfully creating a conflict of interest requires knowing more than an objective description of the act and less than the illegality or even the harmfulness of the conduct. It requires transparent knowledge of the prohibited conduct in exactly the terms used by the violated statute. (Honig, supra, 48 Cal.App.4th 289 [including only the first two sentences of quote below; quoted In re Stonewall F. (1989) 208 Cal.App. 3d 1054.].) Stonewall F.’s explanation, fully quoted:The section 7 definition is entirely dependent upon the act to which "wilfull" is appended. The required intent is an intent to do just that to which the term wilfull is applied. Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed. (See also Hall, General Principles of Criminal Law, supra, p. 142 ["It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end."]) (In re Stonewall F., supra, 208 Cal.App. 3d at p. 1066.)
The Business and Profession Code section 6103 language awaiting parsing with Penal Code- section 7-concepts reads: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, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.
The intent required to violate section 6103 is knowing that the order exists and that it requires doing or forbearing a particular act. Respondent's knowledge that the order required him to forbear is tantamount to knowing the order’s finality. Directly applying section 7 subdivision 1 to section 6103 violations corroborates the holding of In the Matter of Maloney (2005) 4 Cal. State Bar Ct. Rptr. 774, 787 that willfulness in violating an order requires respondent’s actually knowing it's final.
The other major case construing Penal Code section 7 willfulness People v. Garcia (2001) 25 Cal.4th 744 examined whether a sex offender’s violation of the mandatory registration laws was willful if the sex offender should have known the requirement, having received instruction and given acknowledgement. Garcia noted that the courts construe willfully, in appropriate statutory contexts, to include negligent or at least criminally negligent conduct. Garcia held that even criminally negligent conduct would not have satisfied the willfulness requirement. After reviewing cases involving willfulness without actual knowledge of the command disobeyed, the Garcia court concluded exceptions to the actual-knowledge requirement could apply only where the statutory violation consists of an affirmative act, as contrasts with an omission. (People v. Garcia, supra, 25 Cal.4th at p. 752 ["These cases generally involved affirmative acts, not a mere failure to act."].)
Section 6103 commands acts of obedience to court orders, and violating section 6103 involves failure to perform these acts of obedience. This comment on the statute’s grammar holds true, even if the order object of disobedience prohibits rather than commands action. The State Bar commits sleight of hand, typically skipping the grammar of the statute and analyzing the order’s grammar instead of the statute’s. Under Garcia, willfulness in failing to perform specific acts, such as obeying specific court orders, requires knowledge of what is commanded and that it is commanded. (Garcia, supra, at p. 752.)
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.
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.
