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.

kanBARoo Court, 4th Installment: The State Bar & Its Academic Allies Undermine Legal Sophistication

Although attorneys form the primary intended audience for these installments, I fear that the Bar-establishment's mindset can damage our legal institutions beyond the direct effect of regulatory policies on attorneys. The following contribution to discussion by a bar-establishment academic makes me think I should have broadened even the primary audience. Both the position and reasoning expressed are frighteningly authoritarian, and they undermine everyone's basic democratic rights.

Bar-establishment academic Jeff Lipshaw discusses in a post entitled "Anonymity, Chatboards, and the Imus Defense" (http://tinyurl.com/2nb2ob) a proposal by a law librarian to require that bar candidates provide a complete list of all online names the candidate used while a law student. Lipshaw does not outright advocate this measure. Rather he gives it favorable coverage while expressing some undisclosed reservations, rather in the manner of Hillary Clinton when commenting on New York Governor Spitzer's immigrant automobile-licensing proposals. That Lipshaw has no fundamental differences with such a measure came out clearly when he responded to a commenter.

The anonymous commenter wrote "The last time I checked, the First Amendment protected anonymous speech. Perhaps our legal academics here need a refresher course in constitutional law."

Mr. Lipshaw retorted, "[W]hile there may [emphasis added] be all sorts of First Amendment protections around anonymous speech, there is no First Amendment right (or any other constitutional right) to be licensed by the state as a lawyer, any more than the Fourth Amendment guarantees you a right to board an airplane, or enter the Supreme Court chambers, without being searched (perhaps our anonymous posters need a refresher course in the Legal Profession). So whether or not there is an affirmative obligation to reveal your identity, one of the risks you take by yapping anonymously (subject to metadata, of course) is that you aren't really anonymous, and when something you thought you said anonymously that reflects on your ability to pass muster under the moral character requirements of the bar admission process turns out not to be anonymous, you have just encountered a real-world consequence of exercising a right. Sorry to burst the bubble."

My comment, not posted on the law professors' "moderated" blog was:

Inquiry that penalizes the exercise of First Amendment rights by preventing those exercising them from practicing law is certainly constitutionally prohibited. (See Baird v. State Bar Arizona (1971) 401 U.S. 1, 8 ["[W]e hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law."])The balancing tests applied to the Fourth Amendment matters do not mean that the search scenarios fall outside the Constitution. They show only that no right is absolute. You would be hard pressed to show a compelling state interest in students' anonymous and lawful postings.

As the Baird court established, a threat to the right to practice law is a general threat to liberty. Such a threat would pose considerable risk to liberty if it threatened only the rights of attorneys. But it does more. If you tell citizens that their "yapping" (Bar-establishment talk for free speech) will imperil their rightful options, such as becoming a lawyer, it restricts the exercise of their rights, regardless of whether the citizens are presently lawyers and even if they do not end up choosing the profession. Diminishing citizens' opportunities by dint of the exercise of rights interferes with their free exercise. The oppressiveness of the bar establishment, even when robed in academic gowns, threatens all civil society. And it is borne of the kind of incompetence in legal reasoning here demonstrated by Mr. Lipshaw, an incompetence that grows out of the State Bar enforcement culture.

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