Interlude 18. Judicial Narcissism versus Justice: the Melvin H. Hoffman Matter

During a phone conference, family-law litigator Melvin Hoffman called a judge a "narcissistic, maniacal, mental case." The judge reported Hoffman to the Illinois state bar, resulting in a six-month suspension, and the judge drew ridicule, even from within the state-bar establishment (see Monroe Freedman's comment). The Illinois state bar's conduct is unsavory, not only because of the infraction's pettiness but also because of prosecution in bad faith, reviving long-abandoned charges, one a decade old. From review of the ABA discussion board, one conclusion is certain: lawyers and the public—following numerous exposures—will no longer presume they should respect undeserving judges; but the legal and ethical underpinning of a critical attitude toward judges lags.

Many commenters (e.g., Comments #39 and #81) applauded Hoffman's ethics, but state-bar ideology isn't quite dead. One commenter (#10) came close to admitting that irrational, automatic public respect for courts is what's at stake, but the most repugnant argument for mandatory respect was the hypocritical claim that Hoffman's conduct was prejudicial to his client. These critics' (#33, #21, #58, and #92) readiness to second-guess Hoffman shows this is not good-faith criticism. Even the most sophisticated of these comments (#38), which pointed out that confronting a narcissist with his diagnosis predictably causes an outburst of narcissistic rage, refused to acknowledge that the injustice might have gone far enough that the incident's publicity was the only remedy or that elicitation of the judge's expected narcissistic rage was the only tactic exposing the judge as a megalomanic narcissist. (See "Installment 22: Can you tell victory from defeat?") To demand Hoffman explain his tactical reasoning ignores his work-product privilege. This was no episode of "snapping," Hoffman having written the judge to reiterate and elaborate his insights.

The lack of legal sophistication in the comments shouldn't surprise given the low level of legal coherence cultivated by a nationwide state-bar establishment that has eliminated real legal contention in ethics. The legal and ethical naivete underscores the importance of looking to other state-bar cases to build a cumulative case against the state-bar courts, and this means looking across jurisdictional lines, since the state-bar courts are similar across the land. Confusion dominated the discussion of courtroom free-speech rights. Hoffman's critics relied on the half-truth that attorneys in court lack free-speech rights, but Hoffman's supporters also erred, if in a less pernicious fashion, by simplistically affirming that ordinary free speech rules favoring the speaker applied. When an attorney represents a party, restrictions on the attorney's speech aren't measured by the attorney's free speech rights but by his client's equally exacting first-amendment right to petition. While the Hoffman supporters were formally wrong in claiming Hoffman's free-speech rights (#21), they recognized a first-amendment issue. Any restriction on an attorney's right to speak relevant truth defeats his client's right to petition. The burden of proving falsity falls on the judge or bar prosecutor, whereas the Illinois bar court assumed Hoffman culpable unless he proved his accusation.

The conspicuous weakness in Hoffman's supporters was their general failure to distinguish this act of state-bar oppression from ordinary court-imposed sanctions or contempt findings. Hoffman's critics understood a distinction in the opposite sense that duty requires attorneys to demonstrate compliance with higher standards than laymen, but that's a miserable debater's point: "respect for the court," while theoretically a higher standard, is vaguer, hence harder to prove, than the standards for contempt or other sanctions. For a judge to report a lawyer to the bar courts without citing him for contempt or issuing any sanction is so craven it immediately inculpates the judge in some foul play. The judge bypassed the rigorous criteria for contempt and monetary sanctions in the courts of record by avoiding those courts and forum shopping a softer adjudicator.

Any state-bar discipline for courtroom behavior imposes a penalty far more onerous than the courts, as even a public reprimand often ends an attorney's career. The difference in punishment between lawyer and nonlawyer for courtroom behavior is so wide, it affronts the lawyer's and his client's equal protection of the law.

78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of review

8^th in Philip E. Kay series
State Bar respondents are often unaware that the petition for writ of review, the ultimate review vehicle in State Bar Court, has nothing but its destination in common with the petition for review, the review vehicle in the courts of record. Court rules limit only the latter's length. State Bar respondents, otherwise enjoying fewer rights of review than other professionals, can file California Supreme Court petitions containing unlimited irrelevant matter. What explains the court's indifference to the length of a petition for writ of review, when it was so concerned about reading many short ones? It's simple: no one at the Supreme Court reads petitions for writ of review, not even a clerk. So I concluded when within hours of receipt the Supreme Court denied a respondent's petition I drafted.

Phil Kay has now filed a petition for writ of review. Of course, I'd prefer to be proven wrong about the outcome, but at least the petition isn't a completely wasted effort. It performs excellently in setting out and proving Kay's case; I'd recommend it to anyone wanting to understand this important State Bar case because of the petition's legal and factual truthfulness. This characterization doesn't apply to the opinions written by "courts" in the State Bar hierarchy (see disHONNest judge); and it must be admitted, it doesn't apply to the bulk of attorney submissions: being oppressed by the State Bar takes its toll on attorneys' ethics. (See The Richard Fine Story: An Objective Analysis.)

Previous kanBARoo court Installments touch the issues Kay's petition raises except for two related arguments that may have merit but which fail as stated. The arguments are summed up in Kay's theory that the State Bar's Kay decision is tantamount to a collateral attack on established superior-court verdicts. Specifically, Kay argues that a judge may only instigate a State Bar investigation by filing a complaint for what Kay calls "reportable actions." Business and Professions Code section 6086.7 mandates that judges shall report:

1. A final order of contempt imposed against an attorney;
2. Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
3. Imposition of sanctions; or
4. Imposition of a Family Code civil penalty.

Kay's related claim is that being cleared of trial misconduct necessarily clears the attorney of State Bar misconduct for the same offense. Kay's argument limiting the meaning of "attorney misconduct" and Kay's argument limiting judicial reporting to "reportable events" both treat circumstances mandating prosecutory reports as if they limit prosecution.

If only they did. The statute states that the judge shall report certain events, not he shan't report others. The State Bar hierarchy loves legal over-reaching because it invites simple rebuttal based on the statute's express language. When applied to trial misconduct, this argument presuming limitation to "reportable events" can engender particular confusion. When an attorney appeals to a jury's passions but doesn't succeed—maybe the misbehaving attorney loses—Kay's interpretation implies the judge has nothing to report, seemingly reducing Kay's argument to the absurd. The correct answer—that the conduct involved resolves into another "reportable event," namely a contempt conviction—is hard to grasp from Kay's claim that misconduct requires prejudice.

No doubt, the meaning Kay wants to find in the reported-events statute is what the statute ought to say, and I've contended it's what it must say to survive scrutiny under the U.S. Constitution's equal-protection clause, since holding lawyers to a higher standard at trial imposes a qualitative disadvantage on represented parties. Short of the constitutional argument, Kay can reasonably maintain that the charges he faces are improbable without the statutory events.

Kay intends to make the most compelling case. His forced interpretation of the mandatory-reporting statute doesn't serve his purposes. He should lay a foundation based on his Constitutional rights.

61st Installment. State Bar: For employers, against employees

National-state-bar establishmentarians discussed the unwarranted discipline for an attorney's trivial misrepresentation regarding the dates of his employment. (See http://tinyurl.com/d4ftll) Here's how the California Bar Journal summarized the case:

[An attorney] was suspended for one year, stayed, placed on two years of probation with an actual 60-day suspension and was ordered to take the MPRE within one year. The order took effect Aug. 1, 2008.

[He] stipulated that he presented an outdated resume to a prospective employer, committing an act of moral turpitude.

He left the law firm where he worked when it downsized and hired a resume writing service. However, his new resume was not ready when he heard about a job opening, so he submitted an old version, without revising the dates of his previous employment. The resume gave the impression that he was still employed.

[He] later faxed a new resume to the prospective employer but it did not clarify his dates of employment.

David Cameron Carr, president of California-bar-defense-establishment Association of Discipline Defense Counsel, commented revealingly:

Yes, it struck me as unduly harsh, as well, but unfortunately in keeping with the punitive mindset of California State Bar prosecutors since Scott Drexel took over as Chief Trial Counsel in 2005. Almost every discipline decision in California and probably most other states recites that discipline is not punitive but exists to protect the public. It is getting harder and harder to keep this pretense up; those of us who deal with the discipline prosecutors on a daily basis in California see discipline driven by a desire to punish lawyers whom they have decided are bad people. As a former discipline prosecutor (and a former member of NOBC) it is distressing. This punitive mindset has galvanized discipline defense attorneys to formalize our defense bar organization, the Association of Defense Discipline Defense Counsel.

Unlike the Mike Moity case, in which an attorney faced discipline for the tone of voice he took with a magistrate's law clerk, the bar justified discipline under the moral-turpitude standard. Moral turpitude is the one true reason for discipline, but this prosecution shows that unequally applying the right qualitative standard leaves injustices: abuse of prosecutorial discretion and biased meddling in attorneys' disputes.

A guilty defendant can rarely mount an equal-protection defense, giving American prosecutors almost unbridled discretion over charging a lawbreaker. (Sheer, Prosecutorial discretion, Georgetown Law Journal (June 1998).) Prosecutorial discretion advantages the prosecutor's office, which can reward cooperative defendants with reduced charges, a process formalized in plea bargaining. When a lie is widespread but the bar prosecutes only an isolated case, the bar institutes a means of unequal treatment usually unchallengable judicially. Who knows what led a prosecutor to select one person to prosecute, what perhaps private and probably corrupt motive induced the bar to file charges in this minor "resume fraud"?

Yet here we can discern a definite purpose: the State Bar's support of the class of employer attorneys, support shown by the unusually high ethical standards applied one-sidedly to business negotiations outside legal practice. Extraprofessional conduct gets less scrutiny in discipline proceedings: attorneys aren't disciplined for a slightly inaccurate apartment-rental application. The negotiations between an attorney and his boss belong to the business of law, not its practice.

What the State Bar refrains from doing also proves its bias favoring employers. If the bar prosecuted employers for lying to their employees, the bar could handle nothing else, so accepted and widespread is the mendacity of employers, including attorneys. Will the bar discipline this attorney's employer when, informed of the applicant's unemployment, the employer denies him the job and protects his own reputation for fairness by lying about the reason? The bar won't be prosecuting the prevaricating employer for moral turpitude, yet the bar disciplined this attorney for efforts to avoid suffering prejudice. Until the bar charges discipline violations against employer attorneys when they lie to their employees, it should keep hands off employee attorneys who return the favor.

kanBARoo Court. 53A Installment. Subject the State Bar to Strict Scrutiny

[I suggest first reading: 53rd Installment. State Bar v. Equal Protection of the Law.]

No judicial determination affecting an equal-protection action is more important than level of scrutiny. Most equal-protection cases fail, entitled only to the rational-basis standard, which the state trivially satisfies. An equal-protection action is entitled to strict scrutiny when the state actor impinges a First Amendment right, such as the right to petition. To bring a winnable equal-protection action based on State Bar discipline for court filings, the First Amendment right to petition comes into play subordinate to equal protection. A respondent's strict-scrutiny equal-protection case requires determining that: 1) the subject State Bar discipline impinges the right to petition; and 2) the impingement exclusively targets lawyers. (Cf. Rattray v. City of National City (9th Cir. 1994) 36 F.3d 1480, 1483 [analogous relationship of equal protection to privacy, instead of petition].) Notice that determination "1" suffices for strict scrutiny on the First Amendment issue itself, a potentially confusing observation because the 53rd Installment brought in the Fifth Amendment to supplement the untenable First Amendment approach. To solve the conundrum: A compelling state interest in regulating the court’s receipt of documents, consuming court time, justifies the restraint on speech.

To succeed with the present equal-protection and free-speech argument, you must allege impingement of protected speech. Don’t expect sustaining this allegation to be easy, as the court will try to categorize frivolous motions as unprotected, alongside obscenity and intentional lies. In a near-future Installment, I'll sketch a variant argument that can prevail without the court's determining that frivolous filings are protected speech, but proving that penalties for frivolous motions restrain protected speech isn't inherently hard apart from judicial bias, despite the absence of decisions addressing the categorization. Since “frivolous” describes the aim of a motion or action, a ban on frivolous proceedings prohibits a range of objectives. Since the ban takes sides against petitioning for objectives deemed frivolous, the speech restraint is viewpoint discriminatory, not content-neutral. Frivolous filings can be regulated only to satisfy a compelling state interest in procedural orderliness. But no compelling state interest requires prohibiting attorney disobedience to orders and rules when nonlawyers in propria persona have the right to test petitionability’s limits, subject only to milder contempt penalties.