kanBARoo Court. 46B Installment. "Bureaucratic Reflex" Defined

Of all the California Supreme Court State Bar cases, In re Nadrich (1988) 44 Cal.3d 271 gives the State Bar Court the high court's harshest and most on-point dressing down, defining "bureaucratic reflex" in passing. Beyond the gross defects in legal reasoning charged to the State Bar, the story reveals the State Bar's utter callousness. Nadrich's auto accident had inflicted perpetual severe pain, which to relieve, his physician prescribed Percodan, an opiate. The physician subsequently breached his medical duties by abandoning the patient, after cutting off the addictive pain reliever. Nadrich now had an addiction almost impossible to treat, the price, intolerable pain. Nadrich fell into despair and clinical depression, which forced him to close his law practice. To finance his Percodan habit and freedom from exceptional pain, at vastly inflated street prices, Nadrich accepted two offers to serve as intermediary in transactions to buy LSD.

The case could be a poster for bureaucratic reflex, although the court emphasized instead the Review Department’s refusal to consider mitigating circumstances. Despite the distorted focus, the Supreme Court describes the State Bar Court perceptively. The State Bar Court recommended disbarment for the:

sole stated reason [that]: "[Petitioner] was a professional dealer in illegal drugs for a substantial period of time and did not cease to be so until arrested. A lawyer who engages in such conduct should be disbarred." (In re Nadrich, supra, 44 Cal.3d at pp. 277-278.)

The Supreme Court denounced the State Bar Court’s reasoning in terms implying, from the first sentence, the Review Department was incompetent:

This statement betrays an oversimplified and unsupported view of the law. First, it suggests, incorrectly, that we discipline attorneys simply to punish them. [Citation.] (Cf. 37th Installment ["moralism"].) Second, it implies, also incorrectly, that we will not consider substantial mitigating circumstances in cases involving serious offenses. [Citation.] Third, it intimates, again incorrectly, that we apply rigid disciplinary standards, and that we analyze attorney discipline cases in the abstract instead of resolving each case on its own particular facts. (In re Nadrich, supra, 44 Cal.3d at p. 278 [emphasis added].)

The third—the one the case really is about—exactly defines "bureaucratic reflex."

kanBARoo Court. 37th Installment. Moralism: A Synthesis

Attentive readers will have wondered whether I would ever get around to defining "moralism." Perhaps I was unaware that I hadn't provided a definition or even failed to notice the meaning was not evident, although involving replacement of positive law with moral claims. A more refined but still preliminary definition is moralism asserts quotidian moral norms should decide legal outcomes.

Psychoanalytically, moralism expresses the archaic super-ego, the Freudian punitive and primitive unconscious conscience, organized around desert through the talion (eye-for-an-eye) principle. The 35th Installment related moralism to capital punishment, and I claimed moralism includes the tenet holding some deserve to suffer; insists capital punishment be punishing; and insists suffering penalize lesser misdeeds. These tenets comprise desert, prominent in conventional morality. In the same Installment, I called capital punishment regressive moralism's extreme; it takes desert furthest. The 36th Installment holds moralism responsible for laws barring insurance and indemnification for intentional torts, because the measures prohibited interfere with desert. In the 33rd Installment, I claim moralism denies the right to demand trial. The talion principle so insists, as the defendant didn't give his victim a trial.

Only partly overcome by lawyers, moralism is the natural way we think about punishment. The moral compulsion is sufficiently instinctive that bureaucratic reflex expresses and harnesses it. The moral compulsion's mental presence is sufficiently vivid to support widespread reification in a naïve moral realism, which holds that moral facts exist. The 6th Installment maintained that strident moralism obfuscates issues, helping justify bureaucratic reflex. Conventional moral feelings color and obstruct thought by their tenacious grip and, as habitual thought patterns, they coincide with bureaucratic reflex. The 32nd Installment says that the State Bar distorts civic discourse wherever the Bar imposes its bureaucratized moralism. By incapacitating the analytic faculty, moralism prevents rational discussion.

Deciding legal outcomes by primordial moral norms produces inferior legal outcomes because the process strips proceedings' limitation by the law of evidence, the law of procedure, precedent, informed statutory construction, and public policy. Everyone understands the first four, but public policy is easily confused with morality. While desert calls for punishment consistent with the severity of the infraction, current public policy is mostly dedicated to deterrence, and deterrence demands not only a positive relationship between punishment and an infraction's severity but also an inverse relation to the probability of apprehension. Desert demands that capital punishment punish, while a strong public policy against torture, defined as any unnecessary infliction of pain, calls for only painless executions.

In my case, one must labor to apply the distinction between moralistic and policy-governed prosecutory practices, when contemplating the prosecutrix stealing documents from the case file. Even moralists gag on her conduct. This is why the prosecutrix’s malfeasance will carry weight, even in the hypermoralistic atmosphere of appellate State Bar Court case review.

kanBARoo Court. 30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty

Incompetent administration of law is oppressive in itself, as bureaucratic reflex replaces legal reasoning, but usually the oppression turns corrupt. In my case, the prosecutrix resorted to fraud on the court by pilfering documents submitted for filing. Thus, a second way incompetence breeds oppression occurs because of the inability of the incompetent to defend their acts honestly. A third way is that incompetence limits the reasons for eschewing oppressive or corrupt practices. It matters little whether one acts for good or bad reasons, if the results are wrong in either instance. A fourth way, their sole means to career advancement, the incompetent curry favor.

I started this blog, subtitled "How Legal Incompetence Engenders Oppression," because my case illustrated in pure form the most generic variant of legal oppression, bureaucratic reflex. Because of the case's direction, these Installments have digressed into the second route from incompetence to oppression, the prosecutrix's inability to win cases honestly, and, somewhat the third, in the court's indifference to the prosecutrix's misconduct. I have traveled the fourth, financially self-aggrandizing corruption, only briefly here. While there are pure cases of bureaucratic reflex—mine was at its inception—there are no pure cases of juridical corruption by currying favor for material reward because such corruption requires generalized incompetence, an environment unable to rebut error.

An all-sided view of incompetence and oppression must take account of scenarios where greed joins ineptitude in the engenderment. The Richard Fine disbarment is such a case. (See http://tinyurl.com/38ek9h) Attorney Richard I. Fine has practiced for some 40 years, gaining a reputation for successfully litigating citizen actions against government entities. His career trajectory eventually led to collision with the judicial system itself when he demanded the disqualification of judges in citizen litigation against the County of Los Angeles, based on the judges’ accepting payment from the County. Fine contends that the gratuitous payment of a $40,000 annual cash benefit by the County violated the California Constitution, which states that judges shall be paid by the State exclusively, and he contends the payments amount to a bribe. Fine repeatedly moved to disqualify judicial officers in actions against the County and eventually sued the judges personally, a procedure permitted for personal wrongdoing. At least one of the judicial officers filed a complaint with the State Bar, and the complaint resulted in the Hearing Department recommending disbarment. Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims happened, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done.

The State Bar Court doesn't ordinarily disbar without a showing of greed or dishonesty. Judge Honn needed allegations of moral turpitude, and such allegations the good judge did propound. Judge Honn accused Fine of making frivolous motions out of corrupt motive, the corrupt motive implying moral turpitude. Even if the court could justify discipline for good-faith motions the court considered frivolous, it remains hard to see what Fine's corrupt motive might be. Allegations of greed — the substance of true moral turpitude — are absent from the charges and Judge Honn's opinion. The moral turpitude may be invisible, but Judge Honn is not one deterred by implausibility. According to Judge Honn's opinion, the corrupt motive served by Fine's allegedly frivolous filings was to coerce the judges, and failing that, to wreak revenge!

Judge Honn does not clarify how he surmised Fine's motives. The State Bar Court recommended Fine's disbarment because he is a "legal bully," obviously the tenor of the offended judges' complaints. Some judges are so accustomed to lawyers cowering in their courtrooms that they might contrast any zeal as bullying, but, as to actual bullying, a barrage of frivolous motions is no way to bully a judge. And where is the revenge, when the judge wins, the petitioner is sanctioned, held in contempt, and serves, as did Fine, three days in jail? Corrupt motive in the Fine case is a senseless conclusion without evidence in the face of a far more plausible explanation of Fine's incessant motions. When the judges showed new biases, Fine had to file motions demanding disqualification or risk waiving the issue. Fine perceives a mass-conspiratorial fraud on the court, not an everyday legal situation. Whatever the merits of his position, this is not a State Bar matter.

In the next Installment, you can learn how the Fine Hearing Department failed even to establish the alleged facts on which it dwelled and relied.

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.")

94th Installment. Esteemed Legal Ethicist Richard Zitrin Lambasts California State Bar

Convergence

Incredibly, though, the Bar's Office of Trial Counsel (OTC) has a history of both under-prosecuting cases, such as those I cited, while at the same time over-prosecuting others. (“Why Bar Sometimes Overreaches on Discipline,” The Recorder, Sept. 30, 2011.)

So says respected legal ethicist Richard Zitrin, law professor at University of California, Hastings. (HT: Kafkaesq.) Does the message sound familiar? In the Second Installment to kanBARoo court in 2007, I wrote:

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as over-zealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than over-zealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.

Synopsis

In a three-part series in The Recorder running in September and November 2011 (most unfortunately, subscription only), Zitrin explains the incompetence, insularity, and self-protective mindset that induces the State Bar to suffer disloyal attorneys while it prosecutes vulnerable nonconformists.

Zitrin’s first explanation is that the State Bar prefers the easy way. It is too incompetent to prosecute many of the more important cases (Ronald N. Gottschalk comes to mind), so it picks cases based on their probative triviality.

Prosecutions of lawyers who have seriously and serially harmed clients, while hardly daunting, can be fact-intensive. Prosecutors must prove that a manifestly unfair transaction with a client was “really” theft or embezzlement, or that apparent abandonment of the client was not something else—an uncooperative client, miscommunication or change of address. None of these proofs involves rocket science, but they do require competent trial lawyers [which, as Zitrin documented earlier, the State Bar lacks]. And they are far more difficult than technical trust-fund violations, where the rules are applied strictly and the proof is readily at hand through bank records. No wonder OTC loves prosecuting those slam-dunk violations.

Zitrin’s second explanation resembles my polemic against the State Bar’s appearance-of-impropriety doctrine. Zitrin writes:

The Bar has always been highly sensitive to how it’s perceived. Or, more accurately, how it perceives it’s being perceived. So if a judge complains about a lawyer, even if OTC doesn’t see a violation it will likely examine the case closely. If there is political pressure—or lots of publicity—then even more scrutiny is likely.

Zitrin’s third explanation corresponds to what I call bureaucratic reflex, not judging the case on its facts but on a moralistic archetype of wrongdoing.

The highly insular State Bar does not like it when lawyers act outside the box—or, more accurately, outside their box. It has long been primed to go after people it considers outliers. Too often, OTC resorts to the “catch-all” discipline provided not in the ethics rules but in the State Bar Act, originally enacted in the 1930s. Particularly appealing to prosecutors are Business & Professions Code § 6106 (“The commission of any act involving moral turpitude, dishonesty, or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a [crime] or not, constitutes a cause for disbarment or suspension”) and § 6068, subd. (a) (“It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.”)

Zitrin illustrates the prosecution of outliers with matters involving famous attorneys in two cases where the State Bar was reversed by the California Supreme Court: Belli v. State Bar (1974) 10 Cal.3d 824 and Jacoby v. State Bar (1977) 19 Cal.3d 359. The recent prosecution of Philip E. Kay is the current version—after the Supreme Court stopped reviewing State Bar matters.

Zitrin assesses the current state of affairs:

The State Bar has a proven track record of mediocrity in dealing with discipline. Even with the advent of the professionalized State Bar Court, OTC’s modus operandi has not appreciably changed: too many serious cases falling through the cracks; too many “easy” prosecutions resulting in harsh discipline; too many of the worst offenders still in practice.

And Zitrin offers a bleak prognosis:

Even assuming that staff can be improved and professionalized from within, changing OTC’s law firm culture will be far more daunting. There’s no reason  to think that the State Bar’s insularity and opacity will change; no one I talk to within the Bar showed the slightest interest in that.

 Limitations

Although Zitrin’s critique shows that even some official ethicists are catching on, Zitrin’s is less thoroughgoing than kanBARoo court’s; he's dismayed by the prosecution of outliers but seems more concerned about expenses than attorney victims. Regarding one case, where a prosecutor was ordered to investigate whether a state lawyer could be disciplined for exposing the fraud of a nonclient state boss, Zitrin comments, “What a waste of time.” But intimidation, not time, is the main issue.

Zitrin is overly impressed with some prosecutors, such as Jeffrey DalCerro (head of the San Francisco Office of Trial Counsel), whom Zitrin terms “long committed to busting bad guys.” Zitrin fails to grasp that self-righteous moralism encapsulates State Bar "insularity and opacity."

Most importantly, Zitrin places excessive confidence in the California Supreme Court. He proposes abolishing capital punishment to save professional self-regulation by dramatically reducing the Supreme Court's caseload, so it can effectively supervise the Bar. A worthy proposal in itself, abolition of capital punishment, but Zitrin doesn’t understand that the Supreme Court’s special relationship to the State Bar (which functions as its administrative arm) creates a conflict of interest which incapacitates scrutiny. (Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative"]; Friedman & Gaylord (1999) Rooker-Feldman, From the Ground Up, 74 Notre Dame L. Rev. 1129, 1132 ["there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs"].)

kanBARoo Court, 6th Installment, The Benninghoff Miscarriage of Justice

The State Bar Establishment feeds rule by bureaucratic reflex and justification by cheap moralism. A section of the law professariat avidly supports this trend as affording license to display their moral superiority. These are natural allies of the State Bar Establishment. Astute observers know that those most aggressively publicizing their moral credentials likely are themselves psychopaths, particularly when they do it to others' detriment.

What to surmise when a law professor begins a blog entry with: "Don't be a sleazeball"? What to surmise when this professor's errors of fact are pointed out, the law professor considers the matter so unimportant that he deigns not even to correct the errors of fact. The State Bar as constituted is not the institution to do it, but outrageous libelous publication warrants discipline for moral turpitude. Certainly the demonstrated lack of concern for truth warrants the writer's removal as a law professor.

The blog entry belongs to one Professor Shaun Martin, and the entry appears at http://tinyurl.com/244lqw The case on which Martin comments is published at Benninghoff v Superior Court (2006) 136 Cal.App.4th 61. Professor Martin recites facts scarcely recognizable as belonging to the same case. Martin's most egregious errors are 1) he pretends that the court found that Benninghoff's representation before federal administrative law courts was unauthorized practice of law, when Benninghoff prevailed on this issue; and 2) Martin pretends that Benninghoff was found to have violated laws barring the unauthorized practice of law, whereas the Court of Appeal refused to rule on that question, finding instead that Benninghoff breached a special set of standards pertaining to the practice of law by former attorneys. The first lie is so false and so foul that I will abjure further discussion, lest the stench — to use one of Professor Martin's choice terms — prove infectious. The subject of this installment is the second misrepresentation of the facts and the court's opinion because it highlights the pitfalls in Bar Defense by even experienced and zealous advocates and points to the level of legal theorizing necessary to keep the State Bar from devouring the law.

Benninghoff's web site at http://www.administrativelaw.net/ shows that the Court of Appeal failed to mention substantial contrary law argued before it. This showing did not suffice to win a Supreme Court review. To prevail, Benninghoff needed to raise deeper issues of law. Had the court said that the law prohibits nonattorneys appearing at administrative hearings, the issue could be addressed at the familiar level of case law and judicial council opinions. The court did not address it at that level because the State Bar would not have prevailed on those considerations, precedent considered. The Court of Appeal opted to save part of the State Bar's case by distinguishing the duties of a resigned or disbarred attorney, on the one hand, and laymen who have never been attorneys, on the other. By making this distinction the Court of Appeal reached the decision it apparently wanted to reach, but it did so by crafting a rule absurd on its face and unconscionably arbitrary on analysis.

When you go up against the State Bar, you deal with a legally unsophisticated agency that will take any of your rights it can. That is the only way the California State Bar can function, as it lacks the legal aptitude and experience to litigate difficult questions of professional ethics. The workload facing the appellate courts these days is so heavy that you cannot expect the court to recognize the absurdity of the State Bar's position spontaneously. You must fight a battle directed against the oppressively arbitrary distinctions the State Bar will try to foist on your case, attacking them at their root, not at the most superficial legal level possible.

Superficial attack is usually the favored way to proceed. You don't raise questions of constitutional magnitude unless you absolutely have to. When you have a serious case before the State Bar, you have to. You must energetically break certain routines and habits of ordinary litigation, because you are encountering a force whose strength consists of its brazen willingness to draw arbitrary and oppressive distinctions and of its institutional connections, which gain acceptance for its travesties.

Think about what the State Bar is saying and what the Court of Appeal held. The State Legislature can impose special punishments on persons based on their occupational history. When you become a lawyer, you forfeit forever the rights everyone else has, even (and especially) if you cease being a lawyer. Having been a lawyer, according to the Court of Appeal, you can never again represent parties in a lay capacity, even where anyone else but a former lawyer has this right. This must strike any fair-minded person as oppressive and insane. What will the next law be: that any citizen can home school his children unless he has previously worked as a teacher?

Fortunately, there is a term for such legislation — or as here, construal of legislation. Standards are in place to preclude these arbitrary manipulations of the law, to prevent the courts or the legislature depriving citizens of rights unrelated to any punishment for any crime they have suffered conviction. As any fair-minded person's gut reaction will tell him, precluding this kind of law is a very basic kind of right. It is so basic that to reach it, you need to go to the original U.S. Constitution, beyond even the Bill of Rights. If the concepts are unfamiliar, it is because no one except the State Bar would propose a distinction so invidious and have the social weight to get approval by the Court of Appeal.

Benninghoff v. Superior Court construed Government Code section 6126, subdivision (b), in so crazy a manner that it turned it into a bill of attainder. The prohibition of bills of attainder serves the separation of powers, the prevention of legislative infringement on the judiciary's prerogatives to find guilt and to punish. "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply — trial by legislature." (U.S. v. Brown (1965) 381 U.S. 437, 440.) As James Madison explained ""Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation." (Federalist Number 44 (1788).)

The Legislature cannot pass laws specially punishing resigned or even disbarred attorneys without trial and remain within the U.S. Constitution. Punishment is for the judiciary, and any law construed as a bill of attainder must be invalidated. The Bar Establishment must be precluded from imposing punishment by attainder on lawyers and obfuscating the real issues with its strident moralism. To fight the Bar you must be able and willing to deal with the most fundamental issues.

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kanBARoo Court, 2nd Installment, Don't Fear the State Bar

The stigma of prosecution by the California State Bar and the fear of aggravating the State Bar advocates' irritability dams up almost any public exposure, whether pertaining to the State Bar Court's Hearing Department or its Office of the Chief Trial Counsel. Hungry for information that threatens any lawyer's livelihood, many attorneys scan the entire Discipline section of the Bar Journal, pretending a voyeuristic curiosity about the Members so subjected, where the real and legitimate interest lies in the basis for the discipline imposed. Nothing else in the Journal proves to merit their attention, and the discussion of discipline is no more inherently illuminating. What might cause an honest lawyer to fall afoul of the State Bar? This is the usually unspoken and futile question lawyers address to their reading of the Bar Journal. Whereas the process of prosecution will determine the level of due process, the Bar Journal acquaints lawyers with only the result.

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest. The State Bar's incompetence should not excuse any complacency by attorneys or the public, as this kind of incompetence does not preclude numerous convictions. This paradox of the State Bar is the riddle that opens the way to understanding why the California State Bar is so incompetent. The paradox is that, incompetence notwithstanding, the State Bar can threaten honest practitioners.

The State Bar's incompetence grows from the absence of real controversies, that is to say, a dearth of seriously contested cases. The State Bar Court, at least through its Hearing Department, functions to avoid real controversies, not to hear them. Consider how the source of our law is the British common law, as it has been fed through the resolution of controversy, as it has evolved to a sophistication where many fundamental precepts have required only the most minute modification over decades, even centuries. The State Bar Court, however, can prevent the statement of controversies with sufficient explicitness to resolve them as matters of legal principle. Its mechanics consist of fear. A wrong tactical guess and an attorney finds himself involuntarily enrolled as inactive. Such a threat does not generate the bold yet small-scale innovations that drive the development of law. And where the law fails to develop in small matters, it must degenerate in large ones.

Bar law, like all law, must continually develop or else degenerate into bureaucratic reflex, but the legal framework governing the State Bar artificially inflates the need for rapid development at the same time as it systematically stymies it. An arcane case law, unavailable through common research tools, largely governs the State Bar Court. A proper respect for legal tradition and a wholesome acceptance of properly informed controversy — where lawyer-respondents know the governing law — would mandate adopting the Code of Civil Procedure, except where specifically amended by Bar rules. The State Bar does this right only for discovery rules. Otherwise, State Bar Court's "Rules of Procedure" wholly supersedes the Code of Civil Procedure, the former's cases confined to The State Bar Court Reporter, except where the State Bar Court’s extensive yet vague and ambiguous rules occasionally state otherwise.

This series ultimately targets the State Bar's simultaneously self-serving and self-defeating rules, buffering the State Bar Court from real controversy. The atrophy of legal thinking, puerility of legal conceptualization, and ham-handedness of execution — in short, the incompetence of the California State Bar's Office of the Chief Trial Counsel — is the concern of these installments. The next installment returns to the story that illustrates and proves this verdict.

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kanBARoo Court. 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?

One event demolished the State Bar establishment’s effective reliance on disbarment as a mark of Cain, to anchor coercive power: the 5-year disbarment of a sitting U.S. President, when the Arkansas Supreme Court disciplined then-President Bill Clinton, after a majority of the U.S. Senate failed to convict, and not a single Democratic Senator voted for conviction. The outcomes implied that one may be ethically qualified for the United States Presidency, yet lack the morals to practice law in Arkansas, a conclusion that the cynical and the idealistic both must reject. Either the U.S. Senate or the State of Arkansas’s State Bar Court equivalent was out of touch with American morals, and it wasn’t the Senate. Clinton's approval rating soon rose to an unprecedented 73%.

Clinton was disbarred based on a federal district court's order citing Clinton for contempt in the Jennifer Flowers proceeding. The allegedly contumacious conduct consisted of false statements Clinton provided in deposition, violating the court's discovery order. The court focused on two false statements: that Clinton had never been alone with Monica Lewinsky and that he had never had sexual relations with her. The Arkansas Supreme Court, through its Bar-apparatus, invoked Arkansas professional practice rules 8.4(c) and 8.4(d), which make it professional misconduct for a lawyer to:

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice

For one living and litigating under the California Constitution, which declares privacy on par with life and liberty in its inalienability, requiring under the Federal Rules that a litigant inform on his sexual partners seems barbaric. Without a direct showing of relevance to the present lawsuit, a federal plaintiff can force exposure of the most personal information. While a court should assign some culpability for the generalized offense of lying in court, it should also consider the altered ethical context, depending on the personal decision the respondent actually faced. Bar Rules typically distinguish different grades of unethical conduct, and the Arkansas rules offer this discussion of moral turpitude:

Comment [2] (Moral turpitude)
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

There are other relevant measures of ethical magnitude, however, such as between breach of basic moral rule (malum in se) and breach of administrative regulation (malum prohibitum). Both malum in se and malum prohibitum infractions have some ethical relevance, but only malum in se violations are usually taken to indicate turpitude, because malum prohibitum infractions reflect only the single trait of law abidingness. While the rule against lying in sworn proceedings is malum in se in form, the underlying obligation to allow routine discovery of one’s sexual partners is malum prohibitum. There is no moral inevitability today for judicial access to all information potentially relevant to civil litigation; no moral inevitability today to afford civil litigants easy intrusion into an opponent’s sexual relationships; no moral inevitability today about holding the threat of future judicial inquest over every unconventional private act a person performs. California privacy law proves the absence of such moral inevitability. Lying to protect personal information from an ethically dubious intrusion is malum in se, insofar as it involves lying, and malum prohibitum, insofar as it involves a failure to comply with the discovery order requiring disclosure. The Arkansas Supreme Court Bar arm didn't consider the ethical dimension in sufficient depth, because it responded with the bureaucratic reflex and moralistic rigidity typical of the State Bar establishment, using the single amorphous concept of moral turpitude to erase distinctions.

The ethical crudeness of the Clinton disbarment decision, however, was not its main failing. The Arkansas Supreme Court should have been subject to federal preemption. It exceeded its jurisdiction in disciplining a President for his conduct as a Federal office-holder. The states have no jurisdiction to control the exercise of Presidential power or of the President's performance of his duties.

The court might have agreed, as it created the impression of imposing the sanction for conduct it observed during the Flowers proceeding, involving personal rather than Presidential conduct. Clinton’s grand jury testimony during the Special Prosecutor’s investigation of his Presidential conduct impeached his Flowers testimony, said the court, but the same logic allows that the Flowers testimony impeached Clinton’s statements to the Starr grand jury. While the district court judge wrote that she directly observed the contumacious conduct, she was mistaken in her evidentiary characterization. She actually observed only a conflict between two testimonial acts. The judge observed or was entitled to take judicial notice of a conflict between Clinton's testimony in his Flowers deposition and his testimony before the Kenneth Starr grand jury, indicating that in one of the two instances of testimony, Clinton was lying, leaving the question a mixed State and federal law question, pre-empted by federal law. The Arkansas court was not entitled to disbar Clinton.

101st Installment. Cases as secrets: A reply to Professor Richard Zitrin

2^nd in the Horace Hunter series.

Hypothetical: Law professor Robert Nirtiz, a scholar and civil-liberties crusader, wins a key First Amendment case in the Supreme Court of the United States. His client prefers a low profile. Should Professor Nirtiz be precluded from discussing this case?

The case is part of our political culture, and prohibiting a civil-liberties’ proponent from discussing a favorable case abridges freedom of political speech, a more fundamental principle than the ethical commandment to keep client secrets. The same principle applies to all cases, including those of Horace Hunter’s clients even if they were offended by Hunter’s blogging. Professor Richard Zitrin disagrees. (Guard your clients’ secrets.) Against the Virginia Supreme Court’s holding in the Horace Hunter Matter that the First Amendment prohibits gag rules on court proceedings, Zitrin writes, “A lawyer remains at all times a lawyer.” The noninsular alternative was outlined by the four-justice dissent in Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1054:

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.

Unfortunately, the reach of state-bar ideology extended to the Gentile court’s majority.

Characteristic of the state-bar establishment’s bureaucratic reflex (or insularity, as Zitrin prefers to call it) is its elevation of bar law over constitutional law, as when the Office of the Chief Trial Counsel cites the State Bar Review Department against the California Supreme Court. Although Zitrin has criticized the California State Bar for being insular, his disagreement with the Virginia Supreme Court’s refusal to discipline Horace Hunter for blogging about his clients’ cases indicates that even the most sophisticated official California ethicists are prone to insular perspectives.

Official California ethicists have never understood that legal ethics, like all law, must evolve as decisional law. (Lack of this recognition is also the reason California lawyers accept the inaccessibility of a bar law reported only through the insular-system’s journal.) Law blogging demands that the law develop because until recently lawyers haven’t had the means to publicize their cases.

But before the advent of blogging, situations existed—such as our hypothetical—where the free-speech rights of an attorney are superior to the attorney’s duty of loyalty to client. The situations involve political speech. Whereas the distinction between political and commercial speech is probably unnecessary to support Hunter’s right to blog without encumbering disclaimers, it comes into its own in distinguishing the kinds of client secrets an attorney must keep, and these secrets belong mainly to two categories: secrets useful for the attorney’s commercial advantage and secrets disclosed carelessly in the course of representation. Disciplining either kind of disclosures regulates commercial speech, whether the commercial locus is in different commerce or the same commerce. The advent of blogging forces a clearer recognition that the duty to keep client secrets stops short of limiting a lawyer’s political speech.

kanBARoo court places loyalty to client at the pinnacle of legal ethics, but the marginal breach of loyalty involved in public discussion of a case doesn’t justify transgressing attorney rights to free political speech—although the rules should strive to reconcile the two to the greatest possible extent. The speech in question is indeed  a form of political speech particularly salutary for law just because of its partly commercial character: it illustrates through actual cases how the attorney’s political aims and legal skills are aligned to further a client’s interest. This is a form of self-promotion that is likely to be a better indicator of attorney competence, courage, and conscientiousness than the standard credentials attorneys often brag up on their web sites. The damage done to the loyalty ethic (even without rule changes) is minor because this isn’t an area where the client has a strong claim for loyalty. Except by contract, clients have no right to secret cases.