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[He] stipulated that he presented an outdated resume to a prospective employer, committing an act of moral turpitude.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

60th Installment. California State Bar becomes bar-establishment laughing stock

The California State Bar became laughing stock of the State Bar Establishment when the attorney general charged clerk Sharon Elyce Pearl with embezzling $675,000. She had persisted for eight years before the California State Bar noticed. (See http://tinyurl.com/ceydkh)

A Legal Ethics Forum blogger posted:

Sad Irony: State Bar victimized by (alleged) staff embezzler: We've all heard countless times about a solo practitioner facing disciplinary consequences because the lawyer's admin embezzled funds. (http://tinyurl.com/cz9rde)

The State Bar Establishment's embarrassment isn't misplaced. The California State Bar, which terms misappropriation by staff a supervising-attorney's willful act—casually adding charges of moral turpitude when any evidence of failure to supervise can be found—proved during an eight-year period that its moralistic stance is a pose. Although the clerk didn't embezzle clients' funds, the ethical culpability is the same because the State Bar held the money as fiduciary of the people and government of California. "All property of the State Bar is hereby declared to be held for essential public and governmental purposes in the judicial branch of the government..." (Bus. & Prof. Code, § 6008.) The Office of the Chief Trial Counsel, the prosecutorial entity, bears blame because that Office is charged with internal-oversight duties by the same law authorizing the State Bar's prosecution of disciplinary complaints. (Bus. & Prof. Code, § 6044.)

If the board of governors, which runs the State Bar, can't supervise ordinary commercial operations, how can it supervise the Office of the Chief Trial Counsel? The board of governors was designed to be ineffectual: consecutive (three-year) terms are prohibited, only annual meetings are mandated, and six members must not be lawyers. The Legislature disempowered the board of governors intending to empower the California Supreme Court, the State Bar's other supervisor, but since the Supreme Court has shown that its objectivity departs when the court hears allegations against its State Bar administrative arm, the feebleness of the board of governors unfetters the Chief Trial Counsel. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4.) Even the sycophantic State Bar Defense Establishment complains about the abrupt change in punitiveness and moralism when a new Chief Trial Counsel takes over.

This comedy isn't one of the gravest harms wreaked by the lawless State Bar, but its reckless failure to supervise public appropriations proves its ethical hypocrisy.

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

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

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

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

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

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

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

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

58th Installment. No discipline without proof of moral turpitude!

Although criticizing the moral-turpitude standard as vague is a popular if futile tactic of State Bar respondents, the remedy for the State Bar's main pathologies, embrace of strict ethical liability and imposition of culpability for impropriety's mere appearance, is that the State Bar adopt a narrow and exclusive moral-turpitude standard for discipline. Principled opponents of the State Bar take opposite positions on the moral-turpitude standard. Noting that California is the only state using the concept of moral turpitude, some urge its abolition in California, where it was once a bulwark against expansion of State Bar power. (See In re Fahey (1973) 8 Cal.3d 842.)

Eliminating the moral-turpitude standard would leave a hodgepodge of rules, pragmatic in their lack of guiding principle, containing no internal bar to their expansion, and, like obscenity law, propelled down that road, but making moral turpitude precise depends on adopting a narrow definition. (Cf. Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 (dis. opn. of Brennan, J.).) In broad, commonsense typologies, acts of deceit take two forms, lies and broken promises, and a broad moral-turpitude concept is rooted in this broad concept of deceit, whose indefiniteness allowed moral turpitude to expand far beyond deceit's borders. The common law treatment of deceit—a breach of promise is not a legally cognizable public wrongdoing, becoming so only when the promise was secretly unintended—is a better guide. Thus, breach of contract is not ordinarily tortious, is not subject to punitive damages, but promissory fraud is both. Legal ethics should retain the common law's concept of deceit, a narrow category tightly linked to lying.

An argument against the narrow moral-turpitude standard's exclusivity is that the space between incompetence and deceitfulness is filled with numerous other character flaws from which the public supposedly needs protection. Does the public need protection from substance-abusing attorneys? (See, for example, In re Nadrich (1988) 44 Cal.3d 271.) Belief that the State Bar should protect the public from varied attorney-selection risks is an ideological obstacle.

Overdeterrence distorts societal priorities, as a worthy no less than Chief Justice George failed to understand when he campaigned to fund court expansion by taxing convicts, punishment severity a matter too serious for political opportunism and fiscal convenience. The public needs protection from narrow moral turpitude because the practice of law creates unique criminal opportunities, but the public should not assume the social burden, such as limiting attorneys' constitutional rights, of specific State Bar disciplinary "protection" against all manner of inferior or improper attorney performance.

Another example of ostensible public need for protection broader than a narrow moral turpitude standard provides: an attorney isn't supposed to communicate with a represented party. On what principle should the State Bar base enforcement of a rule such as this restraint on communication, since talking to a represented party isn't deceitful? One line of response defeats the anti-expansionist purpose of the proposed exclusive attorney-discipline standard: that the communication is deceitful because it's against fair play, and cheating is a form of deceit. Once deceit is stretched beyond connection with the well-defined concept of lying, the standard's advantages dissipate. 

The rule should be questioned rather than the definition of "moral turpitude" stretched if the profession can't legitimately discipline an attorney for a rule violation. Whose interests besides the attorney guild’s are served by dictating an attorney shouldn’t communicate with a represented party, and why do clients with attorneys retained need protection beyond their ordinary right to hang up the phone? One advantage of a reluctance to multiply causes for discipline is it helps see the superfluity of purportedly ethical rules properly beyond discipline's reach.

Moral turpitude isn't the only conduct that should affect eligibility to practice law; one (and only one) additional standard should apply. Regulation of the practice of law will also include extirpating incompetence (assuming practices so close to basic free speech and petition rights should be regulated). Although the total harm caused by attorney incompetence is surely greater than by moral turpitude, discipline isn't the remedy for incompetence, the condition hard to distinguish from bad luck except by written re-examination.

57th Installment. Against sentimentalizing misappropriation

Irate clients lambast the State Bar for laxity, I castigate it for oppression, and the uninformed might conclude that the truth lies between. But both criticisms apply, not only because the State Bar is incompetent. Rather than lax or severe, the State Bar is unconcerned about the most important wrongdoings and exaggeratedly concerned about the less important. More exactly, its concerns follow its pecuniary interest.

What's the worst harm an attorney can inflict on a client? If you listen to the State Bar, you'll think misappropriation of the client's money. No doubt, an attorney who embezzles client funds is unfit to practice law and should be disbarred, but the State Bar's Chief Trial Counsel advises attorneys of a different threat to their livelihood when he states the main risk they run for disbarment is misappropriation by staff. (See http://tinyurl.com/bhlbnf) Embezzlement justifies ejection from the profession because it is a crime of deceit. Courts comment that "willful misappropriation" encompasses a broad spectrum of acts (Edwards v. State Bar (1990) 52 Cal.3d 28, 38), yet the State Bar denominates them with a single term. Embezzlement and negligent misappropriation are essentially the same only to the State Bar, which has a financial interest in the client trust funds. The courteousness of the Chief Trial Counsel's recommendation shows he realizes attorneys who trust their staff excessively don't manifest the despicable traits of character justifying disbarment for embezzling client funds.

The public's impression that negligent misappropriation proves lack of fitness to practice law comes from the State Bar's misleading sanctimony tying mistakes in handling funds to disloyalty to client. Misappropriation can impose damaging delays on recovery, but, a well-kept secret, losses due to fraud are reimbursable by expedited Client Security Fund procedures: the clients' protection from office fraud is not, today, the attorney's primary duty. But, in an earlier day, the California State Bar balked at establishing a client security fund. In 1969, the Court of Appeal commented on the State Bar's procrastination and on the absurdity of relying on the attorney as guardian of client funds. The court pointed out that by 1967, twenty client security funds were established in twenty foreign jurisdictions, 28 states and eight local bar associations, but "the State Bar of California, instead of leading in this work, has been lagging. Although the State Bar has been studying the matter since 1961 [citation], it has yet to take action." (Blackmon v. Hale (1969) 78 Cal.Rptr. 569, 582 [withdrawn for other reasons].) The Court of Appeal parodied the State Bar's moral message:

Turn your money over to me and I'll take care of it, but if I steal it you will have no recourse against anyone but me. Not only that, but as your attorney I may claim offsets for fees earned and disbursements made on your behalf and prevent any accounting or audit of the money for years, during which time you will have no remedies against me except to usual ones of any creditor pressing a contested claim against a denying debtor.

(Id., at p. 580.)

The State Bar partly abolished client serfdom in 1972, and the Client Security Fund indemnifies for misappropriation up to $50,000. With indemnification's advent, misappropriation isn't the worst injury an attorney's office can inflict on clients. The actual worst commonly happens in the ordinary incompetent handling of cases, usually not constituting actionable malpractice. An attorney's fundamental ethical duty of client loyalty is undermined by the State Bar's disciplinary emphasis on misappropriation (and disobedience). A loyal attorney must prioritize effort based on client legal interest, but anachronistic rules assigning the attorney exclusive personal responsibility for safeguarding funds distract attorneys from attending to the client's real interests. The State Bar's sentimentalizing of the attorney-client relation diverts attorneys, distorts professional ethics, and blocks further improvements in client security, like the needed tenfold increase in Security Fund coverage.

56th Installment. More Truth, Less Publication — Against Liberal Publication of Records

The State Bar wants to publicize Bar Court documents to insulate itself against libel in its extrajudicial statements, arguably not subject to the litigation privilege. Whether the California State Bar is liable for a federal tort grounded in defamation by a state-actor under color of law is an issue of first impression, as the Ninth Circuit procedurally dismissed the only case to argue a section 1983 theory based on the State Bar’s defamatory extrajudicial publications. (See Canatella v. Van De Kamp (9th Cir. 2007) 486 F.3d 1128, 1136 [single publication rule].) In my case the State Bar Journal’s summary changed the case’s gravamen by omitting the most serious allegations. First, the State Bar Journal’s February 2009 summary:

STEPHEN RONALD DIAMOND [#183617], 61, of Joshua Tree was disbarred Oct. 10, 2008, and was ordered to comply with rule 9.20.
In a default proceeding, Diamond was charged with 28 counts of misconduct, including forming a partnership with a non-lawyer whom he assisted in the unauthorized practice of law, failing to notify clients of receipt of settlement funds, maintain client funds in a trust account, communicate with clients and return client files, and he committed acts of moral turpitude involving at least $182,000 in client funds and lent his name to be used by a non-lawyer.
In 2004, Jae Bum Kim, a non-lawyer, took over the lease of an attorney for whom he had worked as the office manager. He hired at least five case managers and eventually entered into an agreement with Diamond to form a personal injury law practice. Kim and his staff signed up clients, worked on their files, settled cases, endorsed and deposited settlement checks into Diamond’s client trust account and made withdrawals from the account.
More than 200 matters were settled over the course of a year, when Diamond worked part time in the office. Kim paid him approximately $5,000 a month in cash. During that year, more than $1.33 million was deposited and withdrawn from Diamond’s client trust account. The money was withdrawn in the form of checks that were either negotiated at a check cashing service or deposited into the general account.

Ibid.

As stated, the case's gravamen is aiding and abetting the unauthorized practice of law. Gestures toward misappropriation stop short of accusation and hint at a respondeat-superior theory. The following two paragraphs come from the October 28, 2008, judgment. In both fact and purport, they determine the overall severity of the charges:

In this matter, respondent had abused his clients’ trust and allowed Kim and staff to abscond thousands of dollars from settlement funds. Their taking of the funds is tantamount to misappropriation and respondent is responsible for their acts. The misappropriation of client funds is a grievous breach of an attorney’s ethical responsibilities, violates basic notions of honesty and endangers public confidence in the legal profession. In all but the most exceptional cases, it requires the imposition of the harshest discipline – disbarment. [Citation.]
Moreover, respondent’s misuse of his CTA involving client funds of $182,777 and act of money laundering when he issued the $6,000 for himself were acts of dishonesty which “manifest an abiding disregard of the fundamental rule of ethics – that of common honesty – without which the profession is worse than valueless in the place it holds in the administration of justice. [Citation.]

Id., at p. 26.

The first reason the State Bar prefers releasing court judgments to supplying summaries is to avoid complying with a standard of care in its discipline publications. The State Bar Court based the misappropriation charge on the discredited and potentially defamatory theory of strict ethical liability. The State Bar, seeking the most punitive outcome, prefers the unrestrained original judgment — containing charges known false, such as money laundering — to the abridged version edited for supportability. The bizarre money-laundering allegation appeared in the draft Notice of Disciplinary Charges, was abandoned in the NDC, and reappeared in the October 2008 judgment, despite being uncharged. Transferring funds from trust account to business account isn’t plausibly a way to disguise the funds’ source, but a serious criminal charge expedites plea bargaining and justifies the outcome. The State Bar had only the flimsiest evidence that I allowed the unauthorized practice of law — a self-serving statement by Kim, the perpetrator, that I provided minimal supervision — but no evidence of misappropriation or money laundering. When facing potential consequences for its case summary, the State Bar retreated to the ground it could support. Unsupportable charges remain vital to the State Bar’s ability to coerce concessions without trial, and the State Bar’s accelerating reliance on aggressively released official allegations means knowingly false charges will often set the offenses’ severity.

The State Bar's recalcitrance to disclosing exculpatory evidence provides its second reason to release court documents, not extrajudicial summaries. Nondisclosure of evidence may render defamatory any conclusion the State Bar publishes extrajudicially. Long before the judgment or even the default, Kim compensated the person defrauded of the largest sum according to a notice defrauded person’s attorney served on the State Bar and me. Yet, this settlement was never noted by the State Bar in the default proceeding. A misappropriation charge against one party loses credibility when someone else returns the funds.

55th Installment. Vindicating the Right to Litigate

When economic expansion abated in the middle 1970s, means for adjudicating and satisfying legal rights fell short of the newly authorized suits. To avoid unmanageable caseloads, the courts took shortcuts, including nonprecedential, unpublished opinions and penalties for litigation deviating from paradigm. While Justice Black, for example, had once argued for a reoriented, textualist First Amendment jurisprudence, under today's sensibilities, filing an appeal using a free-speech theory as unconventional as Justice Black's risks sanction. The courts instituted a gradient of litigation constraints, all anchored in draconian measures. The two groups of litigants, represented and unrepresented, were each assigned a unique ultimate deterrent: for litigants represented by lawyers, State Bar discipline; for pro se litigants, the vexatious-litigant classification.

In California, the same constitutional issues apply to each litigation deterrent: both involve a mixture of First and Fifth Amendment issues centered on the right to petition and equal protection of the law. A pattern of litigation error occurs when in-court civil libertarians sue or defend to undermine the unconscionable vexatious litigation statute (which I treat here and here in my legal-theory blog) or State Bar discipline for allegedly frivolous filings. In State Bar cases, attorneys trying to invalidate Bar procedures have argued mostly right to petition, in vexatious litigation cases equal protection. In-court civil libertarians should apply the reverse strategy for each, equal protection for the State Bar cases, the right to petition in vexatious litigant cases. These laws' opponents committed the same error for an identical reason, seduction by the obvious. (See preceding hyperlinks.) Freedom of petition is the obvious objection to constraints on lawyers' petition rights because an economically privileged group's unequal protection goes against intuition. Unequal protection is the obvious counter to the vexatious litigation laws because the laws harm the poor. The Legislature's effort to avoid these arguments outweighs their obviousness, whereas the statutes’ drafters ignored the arguments invisible to in-court civil libertarians.

Recognizing this pattern allows State Bar opponents to use vexatious-litigant holdings advantageously. The tactic is unstable over the long run because it depends on bad law, but the courtroom is anathema to philosophic consistency. A legal opposition should take advantage of the law's cracks as they appear because systematic overhaul in court isn't realistic. In Installment 53, I sketched an equal-protection argument against the State Bar's infringement of the right to petition. The vexatious-litigant statute is both problem and solution. Problem because the putative counterbalance avoiding Fifth Amendment invalidation of State Bar filing constraint is unrepresented litigants' parallel constraint. Solution because courts upholding the vexatious litigant statute hold only a complete litigation ban violates the Fifth Amendment. (Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, 1126-7.) The threat of disbarment, State Bar opponents should contend, is a complete ban. The courts hold "vexatious litigants" aren't barred from filing their suits, but attorneys won't knowingly risk disbarment. The deterrent applied to attorneys is qualitatively harsher, tantamount to prohibition. The comparison proves fundamental-rights discrimination against attorneys.

54th Installment. Protected Nonspeech and Unprotected Speech: Paradoxes of Nonprotection

Installments 53 and 53A assumed filings, even those the courts deemed frivolous, are protected speech. Strong arguments support that contention, but the U.S. Supreme Court disagrees. Without much analysis, the U.S. Supreme Court concluded that frivolous court filings are unprotected speech. (Bill Johnson Restaurants Inc. v. Nat. Lab. Rel. Bd. (1983) 461 U.S. 731, 743 ["(B)aseless litigation is not immunized by the First Amendment right to petition"].) (But see Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.)

Thanks to R.A.V. v. City of St. Paul, MI (1992) 505 U.S. 377, unprotected speech isn’t entirely unprotected. Consider obscenity, a category of unprotected speech. The absence of Constitutional protection for obscenity means obscene speech is not only subject to limitation based on a compelling or even substantial state interests but can be suppressed to any degree the Legislature intends, without tailoring. But it doesn't mean the First Amendment gives the legislature unfettered discretion in selecting which obscene acts to censor. The Legislature, most importantly, cannot choose to censor obscenity based on the viewpoint the speech — contained in the obscene nonspeech — expresses.

If the legislature decides to allow obscene publications by the Greenback Party, it must also allow the Prohibition Party to publish matter containing obscenity. The main barrier to complete control over the publication of matter belonging to an unprotected category is that the right's exercise can't be conditioned on viewpoint. While the key formal distinction in First Amendment jurisprudence is content discrimination versus content neutrality, the real target of prohibiting content discrimination is often said to be discrimination against viewpoints. (Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46, 48 ["Whether applying an ‘absolute protection’ approach, a ‘clear and present danger’ test, a ‘compelling governmental interest’ standard, or some other formulation, the Court almost invariably reaches the same result-content-based restrictions of ‘high-value’ speech are unconstitutional"].)

Unlike bans on obscenity — but like bans on incitement presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction]) — bans on frivolous filings are inherently viewpoint discriminatory. The ban, however, proscribes a dimension of viewpoint the state can ignore. The First Amendment tolerates complete irrationality in discriminating among levels of frivolousness, even though this discrimination is inherently against viewpoints. Similarly, during war, the state can ban only some speech apt to cause imminent violence, even though calling for imminent violence is a content distinction and, not only that, but is a viewpoint distinction: whether one thinks immediate violence is a good thing is a difference in viewpoint, not just a difference in content.

What remains illegal under the R.A.V. standard, despite the unprotected status of frivolous filings, is apportioning the privilege of frivolous filing. The government can't let some groups file frivolously and ban others trying to exercise the same privilege. Since to the extent the filing is protected its protection deals with viewpoint discrimination, any discrimination with respect this right's complete suppression is subject to strict scrutiny.

Analogized, the government totally suppresses incitement in one jurisdiction but treats it mildly in another, despite the speech carrying the same dangers. If denizens of the City of Delitiga could stand on a street corner giving emotional speeches that risked a riot, but denizens of the City of Alitiga suffered ten years forced labor in Alaska for the same outrages, the Alitigans would be denied the equal protection of the law. Only a compelling state interest in discriminatory treatment would justify censorship in one place and not the other, given the same instigation and potential for violence. Similarly, lawyers suffer potential disbarment for filing frivolous motions or violating court orders, and nonattorneys in pro per suffer no catastrophic penalty.

The relationship between protected speech that survives strict scrutiny and unprotected speech was a thorny but unacknowledged problem in constitutional jurisprudence until R.A.V. The doctrine of unprotected speech was first propounded with the rule allowing the government to punish fighting words. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568.) As the minority insisted, traditional interpretation would have held, uncritically, that "unprotected speech" is unprotected simpliciter. In R.A.V., Justice Scalia, writing for the majority, argued convincingly that the First Amendment doesn't countenance forcing one side to argue by "Marquis of Queensbury Rules" while the other side fights "freestyle." (R.A.V. v. City of St. Paul, MI, supra, 505 U.S. at p. 392.) On the R.A.V. standard, unprotected speech is unprotected only with respect to its unprotected aspect. Where St. Paul banned "hate speech" against only some groups, even though this speech consisted of "fighting words," and even though the groups were suspect classes, the City of St. Paul acted in excess of its rights under the First and Fourteenth Amendments by discriminating against contrary viewpoints.

Justice Scalia doesn't directly address the contrast between unprotected speech and the strict scrutiny test. Although many cases survive strict scrutiny in district and the court of appeals, First Amendment constraints don't survive strict scrutiny in the U.S. Supreme Court. (Winkler, Fatal in Theory and Strict in Fact (2006) 59 Vand. L. Rev. 793, 796.) [A puzzle Juridical Coherence will endeavor to solve.] Even the Supreme Court need not address what's not before it. What follows from the majority opinion is: restrictions on unprotected speech need not be tailored to legitimate state interests. The constraints can't be overinclusive, nonetheless; that, everyone agrees. R.A.V.'s law doesn't prohibit underinclusiveness, as the First Amendment requires of content-neutral constraints on protected speech. For unprotected speech, the First Amendment says the government need not be fair to its purveyors except as it bans protected aspects. One of those protected aspects is viewpoint neutrality in extending the state's allowances. Attorneys have become the surprise targets of discrimination.

Don't miss my new blog Juridical Coherence: Legal Theory on Framework Issues.

Interlude 8B. The Ronald N. Gottschalk Matter and the Ethics of Confidentiality: A Test of Principle

The Gottschalk matter helps illuminate the ethical rules that should control professional services offered by nonattorney lawyers. Confidentiality law specifies two kinds of protection: attorney-client privilege and attorney-client confidentiality; the leading case on the distinction is Brennan's Inc. v. Brennan's Restaurants Inc. (5th Cir. 1979) 590 F.2d 168, 172 ["This broad ethical duty protects not only against disclosure of privileged communications but also against the revelation of confidential information that is not privileged."]) The broader duty contrasts with the client-attorney privilege, which must go to the consultation's substance. (X Corp. v. Doe (E.D. Va. 1992) 805 F.Supp. 1298, 1305.)

On privilege-level matter, by policy, I incorporate into my fiduciary duty guarantees stronger than any attorney can offer and broaden their scope to include my authorship of any work product. I treat express personal guarantees as binding as core privilege-level substantial confidences. Privilege-level matter is subject to an absolute privilege that I refuse to breach, even if compelled by order or prosecution or justified by litigation. No attorney can offer this guarantee without accepting disbarment for bad-faith disobedience to court orders. (Bus. & Prof. Code, § 6103.)

Applying the distinction between levels of confidentiality to my Gottschalk disclosures, I respected the attorney-client privilege absolutely but released matter prima facie confidential under the broader ethical standard: my knowledge of Gottschalk's skulduggery insofar as I was its target. Contrasted with the privilege level, my guarantees on broad confidentiality are only conditional. They won't necessarily survive court order or incontrovertible fraud.

Interlude 8A. Ronald N. Gottschalk Esq. —The Smoking Gun

Report: Ronald N. Gottschalk Esq. denies my accusations of fraud, less opprobrious than his anti-First Amendment threats. To quench readers' lawyerly thirst for proof, I append two e-mails: the first, confirming our agreement; the second, claiming weather conditions delayed Gottschalk's performance, which he didn't intend to deliver. My low rate expressed anti-State Bar solidarity.

BEGIN E-MAILS

from Stephen R. Diamond to gov@roadrunner.com, randypotter@gmail.com date Sat, Sep 27, 2008 at 1:36 PM subject Agreement mailed-by gmail.com

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Dear Ron,

You retained me today for legal research, analysis, and consultation. We agreed on a fee of $50 per hour, and an initial retainer of $750, which I will apply to the first 15 hours of work.

No fees will be charged for previous telephone consultation time. I will begin work upon receiving the relevant documents by e-mail and a business or trust account check for $750, or notification that you have actually mailed it.

Stephen R. Diamond
Legal Research & Writing Service
Supplier of Legal Theories
srdiamond@gmail.com
760.974.9279

from Randy Potter to "Stephen R. Diamond" , gov@roadrunner.com, randypotter@gmail.com date Sun, Sep 28, 2008 at 12:29 PM subject Re: Mailing Address mailed-by gmail.com

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We had a massive power failure in North Mandiville canyon last night for all residents. That included theinternet, and all power. Will try to email the documents tonight. I will mail the retainer check Monday. Ron

END QUOTED E-MAILS

The addressee Randy Potter is Gottschalk's employee.

Interlude 8. Ronald N. Gottschalk, Legal Predator — A Public Warning

Update at Interlude 16.

Some State Bar respondents deserve disbarment. In this category falls Ronald Norton Gottschalk, Esq., a parasite who fraudulently offers to buy research time, even resorts to the check-is-in the-mail subterfuge, and intends never to pay. Gottschalk faces charges and probable disbarment, but he is sufficiently unprincipled to prey on other State Bar respondents, defrauding one after failing with the other. On breach of solidarity, we State Bar opponents and respondents must police ourselves.

Gottschalk's verbose attempt to intimidate and bully reveals the kind of lawyer he is or was. Despite claiming he supports the legal war against the California State Bar in public and lawyers' interest, he plays State Bar stooge by threatening this blog's extinction. He resembles the State Bar in more than practicing with knavish ethics: he also practices idiocy. His threatening e-mail, below, accuses me of violating confidentiality by disclosing his skulduggery. When Gottschalk first telephoned, I was suspended by the State Bar, as he, kanBARoo court reader, knew. As to ethics, distinguished from legality, I instructed Gottschalk before discussing his case that no professional relationship existed until he paid a $750.00 retainer, the "check in the mail"; his intrusive phone calls immediately alerted me Gottschalk's character is amiss.

BEGIN QUOTE OF GOTTSCHALK THREATENING E-MAIL

LAW OFFICES OF

RONALD GOTTSCHALK & ASSOCIATES

1160 South Golden West Ave., Suite 3

Arcadia, California 91007

E-mail: Gov@roadrunner.com

Tel: (626) 755-1688

Fax: (877) 284-3067

PRIVILEGED AND CONFIDENTIAL COMMUNCATION

December 16, 2008

SENT VIA E-MAIL ONLY

srdiamond@gmail.com

Stephen R. Diamond, J.D.

6424 Mountain View, St #2
Joshua Tree, CA, 92252

Re: Gottschalk v. Diamond et al.

Notice to Cease and Desist for Violation of B&P §6068(e) and B&P §6450-6455

Notice of Intent to seek injunctive relief, OSC re contempt including the removal of your

Blog and website for your continued violation of B&P §6068(e) and B&P §6450-6455 and orders of the California Supreme Court, without limitation

Dear Mr. Diamond:

Your conduct to date reflects that you continue to violate B&P §6068(e) and B&P §6450-6455 against myself and others. Your allegations are specifically denied and constitutes bad faith and actionable conduct including for an award of actual and punitive damages.

Although you have been recently disbarred by the Supreme Court of the State of California, you are still obligated to maintain confidentiality under B&P §6068(e) and B&P §6450-6455 and cannot use your website or blog to obtain collateral advantage over myself and others.

Accordingly, if you breach confidentiality or publish any information about me on your blog and website as you have threatened or reveal confidential information to third parties, I will sue you under the RICO Act and will seek injunctive relief, an OSC re criminal contempt of the California Supreme Court Order for your disbarment and for removal of your website and blog for the unauthorized practice of law by you, without limitation. You have admitted that the blog and websites are owned and maintained by you.

Mr. Stephen Diamond, J.D.

Re: Gottschalk v. Diamond

December 16, 2008

Page 2

Nothing contained herein shall constitute a waiver of my collective rights and remedies against you and those who aid and abet you. Your conduct is actionable and you continued

violation of B&P §6068(e) and B&P §6450-6455 constitutes sufficient grounds for the relief that I will request from the Federal Court. None of your conduct is privileged and is further actionable based upon your disbarment and violation of the orders of the California Supreme Court.

Very truly yours,

GOTTSCHALK & ASSOCIATES

RONALD GOTTSCHALK

END REPRODUCED GOTTSCHALK LETTER

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.

kanBARoo Court. 53rd Installment. State Bar v. Equal Protection of the Law

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.

kanBARoo Court. 52nd Installment. The Opinionless-Decision Conspiracy

When the California Supreme Court ratified opinionless denials of review, it implemented and enlarged a tactic already tested by a conservative federal circuit court of appeals to deny disfavored and oppressed groups equal protection under a uniform set of procedures and laws. Opinionless reviews are the end of an unacknowledged procedural spectrum treating some cases as less worthy of due process.

The experiment started in the late 1950s when the Fourth Circuit began an unannounced categorization of cases, denying publication to some, while treating unpublished cases as nonprecedential. The Fourth Circuit used nonprecedential cases to resist U.S. Supreme Court initiatives under Brown v. Board of Education and to deflect numerous prisoner-rights cases under the Civil Rights Act. (Pether, Outing the Judicial Epistemology of Hart V. Massanari (2005) 62 Wash. & Lee L. Rev. 1553.) Nonprecedential opinions allowed the Fourth Circuit to treat these cases differently not only in the obviously procedural respect but in respect to the substantive rights found. The cases' nonprecedential character barred other plaintiffs from citing them to enforce their rights, hence eliminating the main motive for correctly finding law contradicting a judge's political or personal inclinations. Studies proved that courts applied different standards in nonprecedential opinions. A 1999 study of the Americans with Disabilities Act showed the plaintiff win rate in employment discrimination cases at the district court level was four times higher in published than unpublished opinions. (Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants (1999) 34 Harvard C.R.-C.L.L. Rev. 99.) If courts correctly decide unpopular cases only if the judges intend publication, a still greater degree of bias will obtain in cases where the court issues no opinion, not even an unpublished, nonprecedential one. An uncitable case may free judges from legal constraint, but the written opinion remains obtainable and a mild embarrassment to the inconsistent judge.

The California courts and the Ninth Circuit were in the forefront of the judiciary's rearguard opposition to Rules of Appellate Procedure rule 32.1, which compels the federal circuits to allow citation—but not precedential force—to unpublished cases. California state courts still enforce a rule subjecting attorneys to sanction for tacitly confronting a court with its inconsistent unpublished decrees. The procedures associated with nonprecedential cases would disturb lawyers if more of them knew. When matters stood much better for court dockets decades ago, already a California Supreme Court screening process culminated in an intense "Wednesday conference" meeting in the Chief Justice's chambers to consider petitions for extraordinary writs and other petitions, including State Bar disciplinary matters. These matters were divided into an A-list and B-list, the latter where denial of the petition seemed indicated. At the beginning of the hour, the conference would summarily reject the bulk of B-list items, 2/3 of the 100 or so considered each week. (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L. Rev. 514.)

The judiciary's attitude toward reviews of complaints by those convicted of crimes—and one must suspect, quasi-crimes—was expressed forthrightly by Justice Black, who supported a lower court's denial of a transcript to a prisoner:

I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error… This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. (Wade v. Wilson (1970) 396 U.S. 282 [Black, J., dissenting].)

Procedures perfected against rights-demanding prisoners are today deployed against State Bar respondents.

For a more general treatment of nonprecedential opinions, see the eponymous entry in my new blog, Juridical Coherence.