Friday, March 10, 2017

112th Installment. The Lesson for Ethicists from the Kellyanne Conway Complaint: General “Moral Fitness” is a Misguided Standard

In an overreach by academic lawyers that legal ethicists ought to have anticipated, fifteen law professors have filed a complaint with the District of Columbia Office of Disciplinary Counsel to sanction Trump-surrogate Kellyanne Conway for dishonesty for her blatantly false statements. As ethicist Steve Lubet immediately recognized, this was a very bad idea. Impinging on the First Amendment, it would empower the state bars to leverage disciplinary charges politically. What Lubet did not address is, under the governing rule 8.4(c), why Conway should not be disbarred. Rule 8.4(c) says, “It is professional misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Conway has made statements to hundreds of millions, such as the falsehood about a “Bowling Green Massacre,” that would be broadly viewed as dishonest. The law-professors’ bar complaint provides a fresh perspective on the rules governing moral turpitude, dishonesty, and moral fitness, showing these standards are generally misguided.

Dishonesty and moral turpitude are only partly interchangeable standards. Conway’s conduct would be broadly viewed as dishonest, but whether it is morally turpitudinous is less clear. Can lying be “honest hyperbole,” as Trump termed it in his deals book? Closer to the point, is dishonesty always morally turpitudinous when performed in the service of a higher ideal? Most people find lying justified under some circumstances, and the D.C. bar expressly exempts agents of the intelligence services from the ban on dishonesty. Cops, moreover, are allowed to become lawyers despite their dishonesty with the public being a virtual term in their job descriptions.       

In addition to the societal disagreement on what is morally turpitudinous, there’s no consensus on the severity of ethical disapprobation that should attach to noncriminal forms of dishonesty, especially but hardly confined to politics. Are easily recognized blatant lies worse than lies misleading voters on what policies a candidate intends to pursue, which usually can’t be known if the politician dissembles? Conway is grossly mendacious in the first way, but under the second standard, Hillary Clinton (to take an example) was more mendacious than Trump or Conway. By her own admission, Clinton stated, speaking to a closed audience of bankers, that views she expressed publicly were systematically different from her real views. By the second standard, separate views in public and private is, for a politician, more mendacious than “alternative facts.”

Institution of an ethics specific to law expresses recognition that the ethics that should govern legal practice are not the ethics of general morality. David Luban’s error of judging legal ethics by ordinary morality has its counterpart in subjecting lawyers to legal ethics when they aren’t engaged in the practice of law.

Extending legal ethics to cover areas where different ethical prescriptions do and should reign, or where there’s no societal consensus on what kind of dishonesty amounts to moral turpitude, promotes state-bar overreach. I’ve previously discussed the overreach in the Arkansas bar disciplinary proceeding against former president Bill Clinton. A recent instance where some ethicists promoted overreach was criticizing Sally Yates’s insubordination when she, as acting Attorney General, refused to defend president Trump’s travel ban, justifying her decision in part on ideological grounds. It is true that federal law denominates the Attorney General as a “government lawyer,” and the legal ethics pertaining to government lawyers requires that they follow orders or resign. But then, if the ethicists are correct, why haven’t they formally complained against Sally Yates? We may hope that they sense that legal ethics did not govern whether Yates, in her political position as acting head of the Justice Department—and not as a lawyer—was responsible to the rules of conduct designed for lawyers while representing clients or practicing law before a court.

Bar and courts impede clarity about the proper domain for applying legal ethics by insisting that lawyers are professionally answerable for “dishonesty” and “moral turpitude” only for offenses that indicate lack of those characteristics relevant to law practice. But the state bars and courts are disingenuous, as shown by several observations. First, the state bars haven’t rewritten the dishonesty or moral turpitude standards despite the judicial limitations on their scope. Second, the supposed connections to legal practice are, without empirical evidence, based on formal similarities between types of unethical behavior. Third, neither the state bars nor the academic ethicists have sponsored empirical studies on which forms of dishonesty or moral turpitude predict unethical conduct in the practice of law.

It is not necessarily to be expected that Kellyanne Conway would perpetuate fraud as a lawyer, in the absence of evidence that lying to the public to advance a political agenda predicts committing fraud on clients or on the courts. Then why are general dishonesty standards employed? It seems plain that they serve to convey a public image of lawyers as honest and to counter the public image that they are crooks. These criteria are not tailored for any screening process, and legal ethicists should favor abolishing this public showmanship at cross-purposes with the fair and effective regulation of the profession.

While dishonesty and moral-turpitude standards occasionally succeed in excluding psychopaths from the profession, they don’t accomplish this in a fair and objective fashion; and in fact, as in the Stephen R. Glass case, the state-bar apparatus has demonstrated its lack of skill in recognizing psychopaths. Psychopaths aside, as legal ethicist Brad Wendell has pointed out, the scientific evidence demonstrates the importance of situational as opposed to trait causes for ethical breaches.

General dishonesty and moral-turpitude standards, as well as the whole practice of moral- fitness evaluations, serve the maintenance of public illusions. The notion that the state bars “protect the public" by screening the pool of lawyers is part of this program. Instead of upholding general honesty standards, legal ethicists should instead express their own intellectual honesty by admitting that state bar discipline is punishment, justifiable only as a deterrent. The state bars should not presume to judge dishonesty outside the practice of law – for the same reasons the D.C. bar should not hold Kellyanne Conway in breach of legal ethics for her conduct as Trump publicist.

Saturday, November 5, 2016

Interlude 30. Pseudo-transparency: From the FBI to the State Bars

The ethical implications of the FBI’s presidential-election interference should embarrass the entire police and prosecutor apparatus, down to the state bars. A consensus of legal commentators criticized, even condemned, the intrusion, proving that letting cops and prosecutors announce their investigations and charges impedes rather than promotes transparency. The license of the police to selectively release information is a mainstay of their arbitrary power and a bulwark of authoritarian ideology. Allowing cops and prosecutors to publicize investigations and charges reinforces the false premise that the mere opinion of the police should have moral weight. Cops and prosecutors are not disinterested knowledge seekers. They are ideologically jaundiced and politically self-interested actors, by nature authoritarian reactionaries. We can expect that the FBI’s ranks are thoroughly Trumpite—like the police in general.

In high-profile cases, investigation announcement, wrong on principle, is moot in practice because, regardless of policy, cops will advance their political agendas through leaks. The police milieu is beyond reform. More germane is the broadcast of ordinary investigations and charges, as when the state bars post selective charging information upon issuing a mere Notice of Disciplinary Charges. We know that the state bar’s information dumps cripple the defense of charged attorneys, since the posting immediately dooms their prospects of earning a living at law. Less obvious is that these mundane practices also broadly undermine a basic civic understanding that investigation and charging announcements are entirely one-sided. Pseudo-transparency elevates the unilateral authority of the police and prosecutors. It conditions the public to accept police pronouncements. It helps create a public mentality where serious commentators contend that candidates shouldn’t be nominated for office if they’ve aroused the FBI’s purported suspicions. And on the other side in the presidential campaign, pseudo-transparency molds a public receptive to the bare pronouncements of the intelligence agencies.

The state bar’s mundane dumping of charging allegations helps create a public ready to accept the word of the police agencies, allowing them to influence even elections. Police (and state Bar) transparency isn’t advanced by encouraging the public to believe whatever information the police and prosecutors choose to reveal, this being the whole point of publicizing investigations and charges.

Wednesday, September 2, 2015

Interlude 29. Journalistic Coverage Suppressed by “California Lawyer”? Don’t let the California State Bar be Done with Dunn!

The California State Bar is using its considerable influence as an agency of the Supreme Court to suppress discussion of its embarrassing rift with former Executive Director Joe Dunn.

In early May, prominent legal-affairs reporter Susan Kostal telephoned me on a story she was commissioned to write for California Lawyer, which happens to be the largest-circulation legal journal in the world. I was one of many critics of the California State Bar she would be interviewing. I talked to her for an hour and referred her to the relevant parts of kanBARoo court, and she said she would call back with questions. At the interview’s end, I expressed surprise that the influence of the State Bar wouldn’t preclude publishing an exploration of the charges of state-bar “dysfunction,” as revealed by the Joe Dunn scandal. Ms. Kostal replied that the Supreme Court justices on California Lawyer’s advisory board would be ill-advised to use their influence to censor journalism; same with Joe Dunn, who is also on the advisory board.

Four months hence, I have heard nothing, no article appeared, and the reporter didn’t respond to my email about the article’s status. I had thought her na├»ve to think the article would be published, and I can only assume that the article was suppressed.

Although the planned article was to be comprehensive, the Dunn scandal, which I’ll briefly recapitulate, was at center stage. The state bar’s Dunn crisis emerged in November 2014 when the State Bar fired him as executive director. Dunn sued the bar, alleging he was fired because he had blown the whistle on the Office of Chief Trial Counsel for falsifying statistics to hide from the Legislature the bar’s quantitative underachievement. (No one cares about their qualitative underachievement). The state bar claims he had interfered in the discipline process. (As some ethicists have pointed out, how else would he know about the falsified statistics?)

I know from personal experience that the Office of Chief Trial Counsel is prepared to commit fraud when there is much less at stake than meeting Legislative demands. But what is most striking is that Dunn, who as self-appointed point-man for the Legislature (now practicing personal-injury law and advertising himself as “The Senator”) served as executive director for four years, bearing the direct responsibility for the ouster of former Chief Trial Counsel James Towery. That an opportunistic political hack has led the state-bar bureaucracy reveals that the anointed moral guardians of the law profession are engaged in a war of corrupt, power-hungry alliances, the leading actors in the state bar amorally currying favor with our political and economic elites.

Among the elites identifiable in the Dunn controversy are the Legislature and the Supreme Court, who both are fighting an underground war for dominance over the practice of law. A third faction, the richest law firms, represented on the Board of Trustees by its elected members, casts the deciding vote. The program of none of the factions is substantially less fortunate for ordinary lawyers and the public, the Supreme Court being just as duplicitous as the Legislature, as by its choice to direct the state bar beneath the public radar rather by than by honestly reviewing decisions.

So, don’t expect, quite yet, that the state-bar establishment will be promoting public discussion of its crisis. Will lawyers and legal ethicists let it drop?

Saturday, June 13, 2015

111th Installment. Difficult clients: State-bar sanction as a tool for policing court access

The state-bar establishment being prone to unwitting self-exposure, former Chief Trial Counsel Scott Drexel once admitted that technical misappropriation is his main target. A recent blog posting by Mike Frisch of the District of Columbia enforcement apparatus advises attorneys about how to “stay out of bar trouble,” and compared even to Drexel’s admission, Frisch’s stunning advice cuts to the essence of state-bar oppression:
Avoid problem clients. If the client has wildly unrealistic expectations, wants much [more] justice than he or she can afford, or has had several prior lawyers all of whom are liars and cheats, it may be prudent not to get involved.
The broadest public access to the courts is a basic democratic imperative. That representing uncompromising clients is the road to disbarment exposes the state-bar’s public-protection hoax, as the state-bar sanctions system serves as an antidemocratic screen to keep unruly parties out of court.

Representing difficult clients may be the premier cause of lawyers being disbarred. (Avoiding problem clients was Frisch's premier advice.) Does Mike Frisch see the implications? Where the risk of bar sanctions depends on client selection rather than acts of malfeasance, the discipline system is fundamentally unjust. Since his clients’ predisposition to complain sets the risk for an attorney’s disbarment, then either charges (and the almost inevitable conviction) are largely trumped up or the offending conduct is quasi-universal, with the issuance of charges tantamount to selective prosecution. How many attorneys have never made a trust-account mistake?

The state bars’ fishing-expedition pleading methods and investigatory practices are designed to guarantee conviction. Most respondents are convicted (of something), although most charges are dismissed with prejudice.

These practices express the mere-appearance-of-impropriety dogma, which I have identified as the ideological underpinning of state-bar oppression. The real offense prosecuted is diminishing the status of the legal profession by eliciting a colorable complaint or representing unruly parties.

Concern for appearance over substance is a tendency inherent in law, especially in matters of ethics, but democracy’s depth is measured by rejection of this hypocrisy.  

Saturday, December 6, 2014

110th Installment. The judicially unconstrained California State Bar: The Marilyn S. Scheer Matter

Review petitions filed by State Bar respondents must be considered by the California Supreme Court, that being the only form of review by any court of record, as required by the 5th and 14th Amendments for deprivation of a property right. The California Supreme Court last granted a respondent’s petition for writ of review 14 years ago. If the California Supreme Court fails even to consider review petitions, there’s created a federal question. 

Marilyn Scheer has a petition for writ of certiorari before the U.S. Supreme Court and a 1983 action on appeal before the 9th Circuit. She argues, among other meritorious contentions, that it defies credibility that over 14 years and hundreds of petitions, the State Bar Court has committed not a single reversible error. She concludes that the federal courts should overturn In re Rose (2000) 22 Cal.4th 430, which established the Supreme Court’s absolute discretion to deny formal review, that process alone compelling the court to issue a written opinion. 

While the facts overwhelmingly point to the absence of judicial oversight and the deprivation of federal due process for California State Bar respondents, Scheer’s case is no assured win. When the California Supreme Court rubber stamps a Review Department decision by denying a respondent’s petition for writ of review, it certifies that it has given the petition its conscientious consideration. For any federal court to conclude that California’s high court hasn’t actually even considered the rejected petitions is to accuse the justices of dishonesty. The federal courts will be reluctant to level, for the sake of California State Bar respondents, an accusation of that moral magnitude against their California brethren.

Still, Scheer’s argument, based on 14 years without review, is powerful. Meanwhile, the California Supreme Court’s position is so facially untenable as to require that we explain how it got in this legal predicament. Wouldn’t it be worth the Supreme Court’s time to take at least a single case during the whole 14-year period following In re Rose?

No, it probably would not. I’ve shown that in its dealing with the State Bar, the politician judges on California’s Supreme Court are concerned only with managing the court’s public image. There’s no good PR in absolving lawyers.

I’ve long maintained that the California State Bar is not fundamentally worse than the state bars throughout America. In the licensing and discipline of lawyers, there’s no serious policy federalism or even islands of competence. But in the de facto absence of any judicial review, California stands alone. This must weigh in Scheer’s favor in federal court.

Saturday, November 15, 2014

Interlude 28. Should cops be permitted to join the bar?

[Based on Authorized police prevarication as a clue to the nature of the state.]

Acts of deceit, including those committed outside of the practice of law, prove a bar-candidate’s moral unfitness. (The Stephen R. Glass matter illustrates the point.) How does the state-bar establishment approach officially legitimate occupations that require that their practitioners routinely engage in acts of deceit? A nice theoretical question, you may say, but surely, no civilized society classifies occupations as “legitimate” when they require acts of moral turpitude. It's practically a self-contradiction.

But one occupation is freely permitted entry to the state bars despite having deceit at the core of its real job description: the police. American cops enjoy a license to lie both to the public and to suspects, interrogations included. Not only do they have this license, but their style of work depends on deceit. No cop can refuse on principle to resort to treachery, even against random members of the public, if at stake is a potential conviction.

Cops will retort that their deceit is socially useful. But so will many others who commit acts of moral turpitude!

Cops (and former cops) don’t belong in the bar, and their admission is the ultimate state-bar hypocrisy.  

Friday, May 2, 2014

109th Installment. How vindictive is the state-bar establishment?—Clues from Indiana’s Ogden matter and the avaricious designs of the California State Bar

Previously, on the Ogden matter: 104th Installment. State bars assault the First Amendment: The Paul K. Ogden Matter in Indiana

New developments in the Paul Ogden Matter

The vindictiveness of the state bars is revealed only when lawyers criticize them, which—due to this very vindictiveness—happens rarely. If lawyers withhold criticism because they fear the State Bars, how can opponents prove the ordinarily silent constraint on criticism: state-bar retaliation? We must rely on courageous lawyers like Paul Ogden to take the brunt of state-bar oppression. Even the original charges against Ogden, formally acts of retaliation on behalf of a corrupt judge, substantively were retaliation for Ogden’s public criticism of Indiana’s Disciplinary Commission (D.C.) when he demonstrated the D.C.’s big-law bias, the charges having immediately followed the criticism ten months after Ogden’s (private) criticism of the judge. Recent developments in the Ogden matter definitively prove D.C. retaliation. The D.C. is acting with impunity in pursuing clear vengeance for itself by serving Ogden with another charge, the illegality blatant.

Behind the new charge is a dramatic story: because of the uncriticizable incompetence of the Indiana judiciary, a party to a family-law matter suffered 14 bullets. The victim had asked Ogden to represent her in filing a legal document removing a family-law court judge, who failed to rule on a motion within Indiana’s three-month deadline. Ogden couldn’t undertake the prospective client’s representation because of conflict of interest, this being the same judge who had complained against him, alleging ex parte communication in Ogden’s already pending D.C. matter. He provided informal assistance, the “lazy-judge praecipe” was filed and should have compelled reassignment. However, the scoundrel of a judge had his clerk delay formal receipt of the praecipe to pretend to have ruled, and the ruling was harsh and retaliatory against the woman, encouraging the other party in his murderous appetites and denying the eventual victim writ protection.

That the judge had manipulated the filing times isn’t speculation; even the Indiana Supreme Court agreed and reassigned the case. But what about the invalid order? The Indiana Supreme Court completely neglected that issue. Ogden blogged this, for which he was charged with … disclosing confidential information. 

You needn’t be a lawyer, only listen to the daily news, to know that client wishes govern disclosure, and the severely wounded victim actually confirmed from her hospital bed that she wanted the case publicized. (See Indiana Rules of Professional Conduct, rule 1.6.) Yet, without even confirming them, the D.C. brought charges for breach of client confidentiality—utterly ridiculous but, apparently, the best it could manage.

California implications

The State Bars across the country are far more similar than different. Even though California has distinct rules (which it is moving to conform still more to the national standard), Bar practices are everywhere much the same. The “laboratory of the states” is sacrificed, but the uniformity lets lawyers generalize across jurisdictional lines, important where dispositive evidence of bar retaliation is, by nature, hard to acquire. (As I wrote in Installment 22, there was a probable element of retaliation in my Bar case in 2007, but the evidence is much stronger in Ogden.)

California lawyers should worry more about retaliatory State Bar practices after Ogden. The awareness that the state-bar establishment is a vindictive claque is particularly important now, since the California Bar is trying to expand its jurisdiction: it lobbies for the right to punish nonmembers—and to retain the fines it proposes to obtain—for the unauthorized practice of law. (HT Kafkaesq.) The California Bar complains its jurisdiction must expand because the Justice Department is reluctant to prosecute (what the Bar considers) unlawful practice. For at least the third time, the California State Bar fraudulently asserts the prerogatives of a state agency.

The California Bar proposes to apply the same biased fee system, wherein respondent pays attorney fees if it loses but the Bar never pays anything. This will no doubt serve as a tool of vengeance against former attorneys incurring the sadistic rage that the state-bar establishment harbors for all principled opponents.

Monday, February 17, 2014

108th Installment. Three strikes against the California Supreme Court: Forsaking standards of candor for the sake of political correctness

Comparing the cases

Many conclusions are obvious from the three January 2014 State Bar cases reviewed by the California Supreme Court; but they were obvious years ago. Among them: the Supreme Court doesn’t review cases to reverse convictions, and the Supreme Court is supremely concerned with managing its status and manipulating its public image. But some new trends do present, so I won’t belabor the obvious. The most important and unexpected trend is the Supreme Court’s refraining—in each of the three cases, Garcia, Grant, and Glass—from inferring moral turpitude from deficient candor during the hearings themselves.

A related trend: the prevalent defense in California State Bar moral-turpitude matters may seem to be “My lawyer said it was OK.” At least that’s so if we generalize from the three decisions. Although the recipients were, in all cases, trained lawyers, they, in each, blamed bad legal advice for their egregious conduct (Glass and Garcia) or false confession (Grant). The court never generalized (or even noted) the issue of whether lawyers can rely on counsel for their ethics; how could it, when no consistent policy can be extracted from the results, the court’s placing considerable weight on the excuse, in one case, and discounting it, in the others. The court’s doctrinal evasion and inconsistency reveals, nonetheless, a tenacious purpose: increasing its liberty to make political decisions (without inconvenient ethical considerations) and increasing its opportunity to issue “politically correct” dicta. In each case, the court should have found moral turpitude based on the candidate or respondent’s conduct in the hearing process itself. The court refrained from repudiating the lawyer-blame theory, to avoid either deciding against the candidate (Garcia) or sacrificing opportunity to expound its politicized dicta (Grant and Glass). The court (expressly in Garcia, tacitly in Grant and Glass), allowed the lawyer-blame defense to excuse lack of candor.

A final point for comparing the cases is the inconsistent role of character witnesses, who are taken very seriously in Garcia and given no apparent weight in Grant or (ultimately) in Glass.

In re Garcia

The most flagrant acceptance of the blame-the-lawyer excuse was in Garcia, the candidate who is an illegal immigrant. After living in Mexico for eight years, Garcia returned to the United States (where he had previously been brought illegally) in search of employment. Garcia landed the job that got him started toward respectability by lying about his immigration status, but he avoided the bar-examiners' questions about the job application by claiming his memory of the events was hazy. (Who could fail to remember obtaining their first employment under conditions of illegality?) He subsequently checked with the former employer to determine whether a record of the application endured, and on finding it did, he supplied a copy to his attorney, who advised him to withhold the information. Two weeks later, Garcia’s attorney had (for reasons unremarked) a change of heart, and he disclosed the evidence. The court should have denied Garcia admission for this flagrant lack of candor.

But the Garcia case was a political event, staged by the entire California establishment. If you’re chafing at the bit to give illegal immigrants citizenship, it’s inconvenient to admit that their unlawful presence is inconsistent with their practicing the best ethics. Garcia was a heavily networked test case for open-borders jurisprudence; he even had a pro bono lawyer (the one who supposedly provided the bad advice and who apparently isn’t being targeted for discipline for advising the candidate to suppress evidence).

By disregarding Garcia's turpitudinous lack of candor as well as ignoring its implications for the credibility of his other claims, the court could focus on subjective interpretation. The opinion apprises readers that the Bar had conducted a very thorough investigation; then, why hadn't the investigation uncovered Garcia’s deceitful application? The opinion extols Garcia’s character references, such as his law professors, who testified to his sterling moral character; but what does a night-school law professor learn of a student’s moral character? With a networked candidate like Garcia, character witnesses are inevitably favorable; they should be discounted accordingly—especially when the court is presented with immediate evidence of the candidate’s lack of candor.

In re Grant

Before the Supreme Court reversed, the Review Department had found a failure of proof that Grant knew child pornography was saved to his computer, despite Grant's pleading guilty to possessing it knowingly. Grant explained that he had erred in his plea: he—and his lawyer—had believed that the offended statute equated bare possession with knowing possession. The excuse is preposterous.

The Grant court downplayed Grant’s disingenuousness because condemning deceptiveness isn’t as opportune as espousing political correctness. The court expatiated on how possessing child porn demonstrated moral turpitude, to twist the meaning of that term, disassociating it from fitness to practice law.

The court’s arguments, the standard fare on the subject, are worth rehearsing because the court evidently believed saying it important. The court denied that possessing child porn is a victimless crime because the porn industry (like any industry) is driven by a market; but being part of an abstract “market” doesn’t constitute a proximate cause for the production of pornography. The court added the second standard argument: possessing porn perpetuates the child’s degradation. This invokes an artificial harm that doesn’t bear on the child’s actual well-being. To prescribe that the consumer of child porn is guilty of bestowing market share and perpetuating degradation is, essentially, to create a thought crime: the same logic applies regardless of the existence of a physical representation. If the user trashes the images, should he not be prosecuted if he doesn’t take measures to forget them? The creation of these purely mental images is the end goal of the pornography industry, but that never justifies punishing the mere consumption of information. (Moreover, how can you ban a practice in a democracy and prohibit citizens from exploring the object of the ban?)

Laws against consuming images (or texts) are blatantly unconstitutional. As Justice Brennan wrote in dissent in the case that, regrettably, validated child-porn-possession laws, Osborne v. Ohio (1990) 495 U.S. 103 [quoting Stanley v. Georgia (1969) 394 U.S. 557]: 
If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.
Although the California Supreme Court’s decision was predictable, to conclude that possessing child porn is moral turpitude takes a step further than its simple criminalization. The Osborne court’s mistake was to apply an ordinary balancing test (rather than a clear-and-present-danger test) to a core First Amendment right. The California Supreme Court turned the policy decision into a moral manifesto, one corresponding to the current politically correct California orthodoxy.

Grant produced character witnesses, all the more impressive because of his own status as a “registered sex offender”; the court downplayed their significance.

In re Glass

Glass, of course, never had a chance, public image having become the overriding purpose of character-and-fitness evaluations. From what planet hails an observer who thinks the Supreme Court will permit the world to joke that Glass was too dishonest to be a journalist—but is fine as a lawyer? Glass showed remarkable lack of candor about the extent of his cooperation in disclosing his falsehoods, blaming his failure to make full disclosure on, whom else, his lawyer. Glass did worse than claim that he delegated to that attorney performance of his promises about the clean-up effort: he misrepresented his (purported) acts of delegation as his personal compliance. Glass had also failed to reveal many of his lies when he applied to the Bar in New York.

But denying Glass admission for lack of candor doesn’t appeal to the demagogic temperament of California’s Supreme Court justices. Why waste an opportunity on mundane defects of character when there are grave matters of political incorrectness to denounce? By paying scant regard to Glass’s lies to the court, the court expanded its opportunity to incite political sentiment. It exposed Glass as a racist, some of his published lies having put blacks in a disagreeable light! The court again created a thought crime—the objectionable racist motive—with which it compounds Glass’s bare perfidy to his readers, much in the manner of hate-crime laws, which are also obviously unconstitutional. The court implies that those with Glass’s views on race are unfit to practice law.

Glass’s character witnesses had been worshiped by Judge Honn in the Hearing Department, but they were often disdained by the Supreme Court. (But some of Glass’s character witnesses were undeservedly respected, such as his psychiatrist, who offered an optimistic prognosis completely at odds with the evident reality.) Some of their comments truly discredited these witnesses. A Georgetown University law professor couldn't grasp the propriety of inquiry into Glass’s having claimed credit, on his law-school application, for journalistic awards that Glass garnered by means of fraud; the professor became indignant. But while the fact is relevant that Glass’s very standing for bar admission depends on his lies in getting accepted to law school, the point could also be made (but wasn't) that Garcia, too, got his start through an act of undeniable moral turpitude.

The Glass court refrained from drawing conclusions about the trustworthiness of orchestrated character references.

In its pretended supervision of the State Bar, the California Supreme Court is concerned only with its own posturing, now expressed in a strident political correctness, which has become so important to the Supreme Court that, for the sake of its expression, the court will downplay even candidates or respondents' lack of candor, letting their lawyers assume blameless responsibility.

Sunday, January 26, 2014

107th Installment. Is being an unlawful immigrant moral turpitude? — California’s Sergio C. Garcia matter

Plutocratic open-borderism contended only with authoritarian law-and-orderism when California’s supreme court—the first in the United States—decided to admit an illegal immigrant. (See In re Sergio C. Garcia (2014) _ Cal.4th _.) The Supreme Court parroted the open-immigration line of California’s economic and political elites; the only opposition, an amicus brief by a former State Bar prosecutor, reflexively counterpunched that a lawyer must obey all laws. Both avoided serious ethical analysis, pandering to politics.

The Garcia court’s moral-turpitude analysis of illegal presence was cursory. The seminal case delimiting the moral-turpitude standard had exonerated candidate Hallinan of bad moral character by exempting two categories of alleged wrongdoing: Hallinan had participated in civil disobedience supporting the civil-rights movement, and he had been in various physical scrapes. (See Hallinan v. Committee of Bar Examiners of State Bar (1966) 65 Cal.2d 447.) These categories correspond to the main instances of serious illegal conduct deemed, in California and most jurisdictions, not to constitute moral turpitude: disobedience to the law for idealistic reasons and “intemperate resort to fisticuffs.” (See, also, Schware v. Board of Bar Examiners (1957) 353 U.S. 232.)

To excusable idealism and volatile conduct, the Hallinan court contrasted five offenses that always demonstrate moral turpitude: fraud, perjury, theft, embezzlement, and bribery. Their commonality is that they bear on “the individual's manifest dishonesty.” The Hallinan court had enumerated the five offenses to provide basis for analogy, but the Garcia court merely noted that illegal immigration isn’t on the list, and (having sufficient sense not to analogize to civil-rights activism) the court analogized Garcia’s illegal presence to Hallinan’s fisticuffs. Had the Garcia court followed the Hallinan court in explicitly characterizing “fraud, perjury, theft, embezzlement, and bribery” as offenses involving dishonesty, it could not easily reach its conclusion that illegal immigration does not constitute moral turpitude.

The Garcia court didn’t analytically compare illegal immigration to crimes of a “fraudulent nature,” on the one hand, or, on the other hand, to idealistic transgressions or to acts showing “a quarrelsome disposition” and “a hasty and ungoverned temper.” (Hallinan, supra, at p. 472.) Had it made the comparison, it would be obvious that illegal presence does not resemble brawling and does resemble theft: both illegal immigration and theft involve illegal appropriation of resources. Violating immigration laws isn’t victimless, since these laws are resource restricting. An example of how immigration laws restrict resources is afforded by Garcia’s admission that he, at least once, had obtained employment by misrepresenting his immigration status. (Garcia, evidently, wasn’t expected to show “remorse” regarding injury to the applicant who would have gotten the job if Garcia hadn’t lied.)

Illegal-immigration’s best analog is tax evasion. To be guilty, one need not tell express lies. (In re Hallinan (1954) [different Hallinan] 43 Cal.2d 243 [income-tax evasion with intent to defraud is moral turpitude].) Like illegal immigration, no one deems tax evasion victimless despite that the individual victims of the fraud can’t be identified. Both involve a dishonest failure to satisfy legal obligations, with the motive that the wrongdoer appropriate resources lawfully belonging to others.

The Garcia court emphasized that illegal presence isn’t itself a crime (as, it also pointed out, neither was Garcia’s driving without license or insurance coverage). But the Stephen R. Glass matter shows that, just as crimes aren’t necessarily acts of moral turpitude, acts of moral turpitude aren’t necessarily crimes.

Sunday, December 15, 2013

106th Installment. Lawyer dues—not penalties imposed on respondents—should fund disciplinary tribunals

California may be unique in unconstitutionally allowing its attorney guild to enforce its self-adjudicated costs as a judgment, but the universal state-bar practice of charging costs to respondents (regardless of how the state bars can collect them) derives from changes in the criminal law that, despite their legality, damage the system’s integrity: policies of victim restitution and social restitution. The critique of social-restitutionary state-bar costs begins with its prototype, victim restitution in criminal law, of which there has accumulated much more legal and societal experience.

Victim restitution in criminal law

The award of state-bar “costs” (in most jurisdictions) is sequel to the practice, itself growing out of victim restitution, of appropriating from criminal defendants an array of “imaginative fees.” (HT for phrase to Rosenthal and Weissman, below.) Wildly popular (despite its hollowness, where only 3% of restitution fines are paid), victim restitution led inexorably to charging convicted defendants for every manner of administrative expense (such as their room and board). If the criminal must make restitution to the designated victim, why shouldn’t he compensate society, too? Once the policy became acceptable, the rush to solve budgetary shortfalls by taxing criminal defendants became irresistible. (Former Chief Justice George in California promoted such fundraising.) The first wave started in the 1970s and culminated in the 1980s in the widespread use of restitution in an amount apportioned to the defendant’s means. The second wave occurred in the 1980s and 1990s, when full restitution widely became mandatory and numerous fees were imposed.

This was the Reaganite “victims’ rights” movement, which included other disruptions—such as victim-plight testimony during sentencing—of reasoned jurisprudence. “Victims’ rights” was largely a sop to victims outraged by plea bargaining, which flowered in the 1970s after the U.S. Supreme Court, in Brady v. United States (1970), legitimized it. Defendants were to be charged the costs of their crimes to their victims, who were also allowed to influence sentencing by diatribe.

Restitution and fees are lauded despite the lack of evidence of their rehabilitative effectiveness and their scorn for one of criminology’s established principles: crime is born of poverty. Eighty-five percent of criminal convicts are indigent. Restitution in criminal law purports to teach the lesson that criminals are personally responsible for their crimes, whereas, in fact, crime is fundamentally a product of social conditions. Society cannot teach criminals to accept rather than deny responsibility when, in the very process of this attempted indoctrination, society denies its own responsibility for causing crime.

Restitution expresses and reinforces the ideological denial of poverty’s fundamental role in crime. The fetishism of “personal responsibility” makes it easy to treat the primary victims of harsh economic inequalities as if they were the ones who should provide restitution. This ideological denial helps explain the tolerance of the American public for mass incarceration.

The availability of compensation for the victims of criminal acts is a form of social insurance. Restitution (3% recovery rate) is insufficient.

It is also socially unjust: victim restitution amounts to a highly regressive tax. This became completely obvious with the 1996 federal law (and similar measures in most jurisdictions, including Penal Code § 1202.4 in California), which required judges to order full restitution regardless of the criminal defendant’s ability to pay, but regressive taxation is inherent in restitution in criminal law, since the overwhelming majority of criminal defendants are indigent. If compensation for targets of crime were treated as a social-insurance issue (as is the European tendency), it would be funded through progressive taxation.

The ultra-individualist complexion of victim restitution helps state actors deny that the development of a sophisticated and nuanced law through courtroom contests is a public good. The numerous “imaginative fees” that the restitutionary mentality spawned amount to a tax on the litigation of criminal allegations. Although “victim rights” was a reaction to universalizing the plea bargain, it has served as its handmaiden by providing another incentive to settle criminal cases before the fees accumulate, at the expense of broadening the corpus of law on which a common-law system depends.

The state-bar ramifications of criminal law’s victim-restitution practices

The “imaginative fees” that restitution spawned in criminal law have been avidly adopted by the state bars, which routinely charge investigation, litigation, and court costs to respondents, including costs pertaining to counts eventuating in acquittal. These “costs” easily run to thousands of dollars, often to over ten thousand—a high price for bar counsel and bar-court judges’ incompetent legal work. They suffer all the demerits of criminal law’s restitution-inspired measures: denial of systemic causes of infractions, regressive taxation, and stunted development of law.

While Bar “costs” are like restitutionary fines in denying the primary role of the system in engendering offenses—whether crimes or ethics’ infractions—they differ in manner. The role of system in legal ethics is not so much to cause infractions but rather to self-servingly define them. (For example, over-prosecuting negligent misappropriation and violation of court orders while disregarding fraud by employers and the sacrifice of client interests to the judiciary’s interests.) Yet, the direct economic causes of ethical infractions shouldn’t be entirely ignored; notably, the state bars have failed to bring cases against law-school administrators who have deceived students about their prospects in law, helping create a cutthroat economic climate.

State Bar “disciplinary costs” fall as a regressive tax on those least able to pay. Indigence may not be an important cause of legal-ethics violations, but once their cases come to issue, many attorneys who face discipline charges are impoverished. The reason is that the filing of a notice of charges is public information, which almost invariably cripples a respondent’s law practice. Until their final hearing, respondents are presumed innocent, yet they are taxed with costs that deter them from upholding their innocence.

Even more than for criminal law, which has enjoyed a long evolution, the disincentive to litigate cases stymies the development of bar law. Bar law remains primitive because of the avoidance of real contention, and bar “costs” are an important mechanism for enforcing legal blandness. 


An attorney-discipline system (supposedly) serves the entire profession and, accordingly, should be funded by dues-paying lawyers.  As it most serves the most profitable law firms, an ideal bar would tax its members progressively—and certainly wouldn’t extort funds from beleaguered state-bar respondents.


Rosenthal, A. and Weissman, M. “Sentencing for dollars: The financial consequences of a criminal conviction.” (2007)