Interlude 15A. Axe the State Bar to Save the Profession

Every act of oppression or hypocrisy creates an equal and opposite reaction. The California State Bar's abuse of power and general ethical phoniness has helped demagogues further attack the legal profession's independence. Hitching its fate to a corrupt police agency, the legal profession has increased its vulnerability to denigration and imposition by the political powers

Governor Schwarzenegger's and Chief Justice George's recriminations against the Commission for Judicial Nominees Evaluation threaten lawyers' right to an independent professional viewpoint and show how independence is further threatened as long as the State Bar is professional expression's vehicle. Schwarzenegger, using a Court of Appeal judgeship as but another patronage award, nominated former State Senator Chuck Poochigian for the California Court of Appeal. The Commission for Judicial Nominees Evaluation, appointed by the State Bar's Board of Governors to conduct confidential interviews to assist in the evaluation of judge appointments, gave Poochigian its lowest rating, "Not Qualified," accurately describing Poochigian. Poochigian has no experience serving as a neutral arbiter, instead having specialized in advising politicians on further politicizing judicial appointments. According to Commission standards, Court of Appeal candidates are expected to have the qualities of collegiality, writing ability, and scholarship. Poochigian has never demonstrated scholarly capacities.

When Schwarzenegger vetoed the State Bar's appropriations, he also complained about the impartiality of the Commission for Judicial Nominees Evaluation. Schwarzenegger is not obligated to follow the recommendations, but he seeks to use budgetary threats to pressure the profession to conform politically, to pretend that legal scholarship and judicial temperament are irrelevant to Court of Appeal appointments and, if it suits the governor's purposes, any politician with a law degree merits judicial appointment. Chief Justice Ronald George chimed in his support, even though the Commission reports to neither the Chief Justice nor the Governor.

A presiding Court of Appeal judge conveyed a similarly threatening message when he tried to humble the Commission for Judicial Nominees Evaluation. Justice J. Anthony Kline admonished Jonathan Wolff, chair of the Commission after it rated nominee Kathleen Banke as merely "Qualified." Justice Kline in passing on Banke's nomination characterized the Commission's opinion of Banke as "bull crap." To those who value the independence of the legal profession, these examples of overreaching by the Governor and the judges prove that the profession's independence is at odds with the profession's subordination to the official state-bar police agency. If the State Bar is allowed to limp on, no doubt the politicians' squelching of independent professional judgment will succeed. The politicians and the state will compel the profession to proclaim every Poochigian a competent judge on the say so of the governor and Chief Justice.

Hold Schwarzenegger to axing the Bar because, otherwise, the likes of Schwarzenegger and George will control the profession.

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.