86th Installment. Florida State Bar enforces “political correctness”—the Mitchell and Mooney matters

In events many observers find unfathomable, the Florida State Bar disciplined two lawyers for trading e-mailed insults. What’s unfathomable to the observers is not, unfortunately, the Florida Bar’s disciplinary action but the attorneys’ conduct, whose frequency in general practice everyone underestimates. In this Installment, we’ll “fathom” both the Florida State Bar and its victims.

Comparing the severity of disciple imposed on each—10-day suspension for Kurt D. Mitchell but only a public reprimand for Nicholas F. Mooney—betrays its motive. What occurred between them is sometimes termed a “flame war”, an escalating exchange of insults, often attributed to the absence of the inhibitions direct contact would foster. The only significant difference between the two attorneys’ conduct consists in the political incorrectness of Mitchell’s mockery of Mooney’s handicapped offspring: While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces. Compare with Mooney’s strongest: Then check your children if they are even yours. Better check the garbage man that comes by your trailer to make sure they don't look like him.

To politically correct moralists, Mitchell’s comment, because it ridicules a specific “incorrect” human target, is tantamount to harming it. Moralistic political correctness habitually misidentifies the object of harm, and this confusion facilitates similar swindles, such as the practice of charging injury to client whenever the Bar is inconvenienced. Here, the Florida Bar took this justification full circle by shedding hypocritical crocodile tears for the attorneys’ clients.

The Florida Bar had no legal basis for this discipline. It invoked its freakish interpretation of “dishonesty,” an all-purpose charge when the state bar finds no chargeable offense or hungers to compound an existing charge. “Dishonesty” plays the same role in Florida as “moral turpitude” in California, and the verbiage reciting the state bar’s artless justification of this characterization is, expectedly, where the Bar sheds tears—because, you see, the clients expected diligent pursuit of their interests, instead of indulgence in such mischief! Harm to both attorneys’ opposed clients is almost inconceivable in adversarial settings, and the nonexistence of any proof of client harm proves clients are the Florida State Bar’s least worry. Both Mitchell and Mooney should appeal the culpability findings as a due-process deprivation, because of the absence of forewarning that insulting opposing counsel would constitute actionable “dishonesty,” a charge that, had it been applicable, would warrant much more severe discipline.

That’s due process under the Fifth Amendment (as applied to the states by the Fourteenth), but what about the First Amendment? Some less narrow-minded observers suggest that the Florida Bar punished Mitchell and Mooney for protected speech, but unfortunately, the U.S. Supreme Court refuses to afford First Amendment protection to invective; the doctrine of unprotected speech is why authoritarian “fighting words” laws pass muster. Although the fighting-words doctrine doesn’t apply when, as here, the parties utter them on their own property, the speech remains unprotected and targetable by profession codes.

The First Amendment protects rights beside speech. Commission of the supposed misconduct in the course of representing clients works in respondents’ favor if they proceed under the right to petition. Although the Florida Bar charged the two with dishonest conduct with clients, the charge prejudges their tactical effectiveness. Conceivably, the flaming was an effective strategy.

Relatively effective, that is. I wouldn't hire them, and their conduct illustrates a deep problem in the profession: incompetent, bullying attorneys. If this tactic was relatively successful, it was so because their repertoire contained no alternatives; attorneys incapable of legal sophistication resort to bullying, but intimidation requires that they can intimidate their opponents. With bullying the one tool in your box, you make do; at least you’re justifying your fees. It gets more interesting when two bully attorneys confront each other, because each, skills limited to bullying, can only escalate hostilities. If some 15% of attorneys belong to this genus, then maybe two or three percent of cases include similarly escalating affronts.

I little doubt Mitchell and Mooney are both bully attorneys, whose limitations damage the profession. Mitchell and Mooney showed that their conduct was tactical: although their insults escalated, they were never out of control. They stayed on the right side of the line as they understood it, never, for instance, using profanity or obscenity. Each—sharing the insults with coworkers and bosses—thought his conduct was proper. Was it? Yes and no: this case isn’t about incompetent, bully lawyers. The state bars don’t intend to address that problem, because state-bar prosecutors are of precisely this type.

77th Installment. The Richard Fine Story: An Objective Analysis

The wrongly decided Fine v. Superior Court (2002) 97 Cal.App.4th 651 (continued)

Commissioner Bruce Mitchell's findings of fact need not detain us. By refusing to release his death grip on Fine's case and finding Richard Fine guilty of criminal contempt, Commissioner Mitchell deliberately acted without jurisdiction, proving his bias.

Another way Commissioner Mitchell expressed his lawless subjectivity was soliciting defense counsel to respond to Fine's appeal. (Ibid.) Mitchell's hubris led to greater openness than wisdom would have prescribed, but the Court of Appeal's bias in his favor outweighed the commissioner's foolhardiness. Although the Court of Appeal admitted this was Fine's most serious charge, the court responded with an unsupported legal conclusion:

Commissioner Mitchell, when advised that Fine had appealed from the "order" purportedly made on December 1, 2000, properly suggested that a response to the appeal would be in order and that the party responding could be entitled to attorney fees. (Ibid.)

How could the Court of Appeal miss the impropriety when a judicial officer exploits courtroom command to gain unfair advantage? How could it miss the commissioner's deliberate misstatement of law in announcing defense counsel owed a collective duty to file a respondent's brief? This false claim encroached defense-counsel authority and interfered with performance of their duty to determine their clients' interests independently .

Mitchell's contempt findings, reinforced by the published Court of Appeal case, became the basis for Commissioner Mitchell's State Bar complaint against Fine, the underpinnings unchallengeable in State Bar Court. Because the findings were incontestable res judicata, the State Bar Court and "Jailing Judge" Yaffe could ignore Fine's sound reasons for demanding Mitchell's disqualification: Commissioner Mitchell was Temporary Judge, serving by consent. The terrible Fine v. Superior Court (supra) decision, based on findings whose provenance defeats their credibility, is the main source of public confusion; but Fine, confusion's victim, contributes.

Richard Fine's misguided argument

Fine justifies his intransigence by Commissioner Mitchell and Judge Yaffe's omissions of County-provided benefits from their mandatory disclosures of contributors. Fine's argument, convincing no one outside a small group of conservative-libertarian true believers, hasn't ignited the public discussion the Fine case deserves. The relevance of these alleged failures to disclose to Fine's contempt conviction isn't immediately apparent, since neither County nor real-estate developers, alleged nongovernment beneficiaries of County's "bribes," were parties to the case.

Fine's argument that judges are derelict whenever they don't "disclose" County "contributions" borders on frivolous, since every judicial officer receives these benefits. The duties a disclosure requirement would impose on a judge who refused the benefits, a refusal that according to Fine is mandatory if judges are to avoid criminal prosecution, shows the wrongheadedness of Fine's nondisclosure argument. Whatever influence County exerts, it also potentially exerts on a refuser, who continues to enjoy the option of getting the benefits but has nothing to disclose. Disclosure simply doesn't address the bias! This shows that County-provided benefits to judges are not a "contribution" but a public entitlement.

This isn't to say Fine was mistaken in thinking Mitchell biased. If Mitchell wasn't initially, he surely became biased after Fine filed disqualification motions, bias proven by the commissioner's vindictive retention of jurisdiction over Fine's contempt. Fine was in a real bind, since Mitchell also presided over some Fine cases against County and land developers. Fine had to disqualify Mitchell in Fine's personal-injury case because he had challenged Mitchell in other cases, where Fine had better reason to suspect bias than provided by his silly nondisclosure theory.

The bias wasn't necessarily for County but clearly against Fine because he moved for Mitchell's disqualification in other cases, but bias in one case isn't legal basis for a judicial officer's disqualification in another. Fine's convoluted nondisclosure argument was a contrivance to disqualify Mitchell—who needed disqualification. Fine's mistake was making this contrivance his centerpiece argument, distracting from and replacing sound arguments based on Mitchell's and Yaffe's actual bias and the oppressiveness of long-term coercive confinement.

To the substance of Fine's argument that County-provided benefits create actual judicial bias, it's harder to say whether judges generally are biased by noncontingent benefits—at least to overshadow bias favoring the State of California, which pays judges' salaries; and it's hard to deny that the quality of judging would decline in Los Angeles County if judges' received 30% less remuneration. Los Angeles County Superior Court judges are better than judges in Joshua Tree, San Bernardino County, and maintaining this quality seems a legitimate County interest. Fine argues that County has no reason to pay judges besides buying favorable verdicts, but Fine and his supporters don't explain why the supply-and-demand truisms shouldn't apply to the selection pool for judges. If zeal for public service is supposed to replace monetary rewards, Fine is conceding that County has a legitimate interest in augmenting judicial remuneration to avoid judicial zealotry.

From Commissioner Mitchell's lies to Richard Fine's obfuscations

The public's understanding is clouded by Fine's legal and writing style, oversimplification of issues, inaccuracies, and disingenuousness concerning his motives. Fine is of the old-school legalese-style of legal writing I bemoan in Disputed Issues: he is at once dense and prolix; he raises a plethora of issues, without apparent regard for loss of credibility, due to his many bad arguments, or for loss of visibility, good arguments buried among bad. (See Legalese: Pomposity Ritualized.) If his case didn't arouse strong judicial prejudices, it would still be misunderstood because Fine is an awful writer.

Fine and almost all blogs writing about him oversimplify the issues, while Fine's inconsistent maneuvering overcomplicates them. The more unorthodox a legal theory, the more important is consistency in execution, but consistency isn't evident in Fine's strategies. Fine was inconsistent in execution when he agreed to Mitchell as Temporary Judge and didn't object until Mitchell started ruling against him. Fine's inconsistency doesn't mean Fine is wrong about the judges and the biasing effect of the County-provided benefits. From observing other jurisdictions where real estate is a major industry, I'm prepared to give credence to claims of corrupt influence lubricated by County payments to judges, but Fine and supporters resist gathering the data needed to assess bias based on verdicts.

Fine claims his opposition to County-provided benefits drove the State Bar to take his license and the judges to jail him for more than a year and counting. The record shows Fine's stance turned the judges against him; its vindictiveness is a discredit to the Los Angeles judiciary, but attorneys are disbarred for disobeying court orders, repetitively demanding disqualification, and suing judges personally. The State Bar's undemocratic policing in disregard of Constitutional rights is oppressive but no unique reprisal for Fine's campaign. Fine has shown that plaintiffs rarely win against County at bench trials, but absence of any control group makes this statistic meaningless; Fine's claim that the corrupt influence is "obvious" from the statistics is one of the more annoying parts of his defense.

Both sides obfuscate Fine's motives. Certainly his willingness to endure jail for a year demonstrates courage and sincerity, but Fine did not, as he implies, challenge Commissioner Mitchell for the direct benefit of his clients: he began his series of disqualification motions when Mitchell delayed granting him an advance on fees, court approval required in class actions. Fine's crusades weren't motivated purely by lawyerly zeal; he was on the verge of personal bankruptcy, and the financial crisis his office sustained was the ostensible reason Mitchell removed him as class counsel. Judging Fine's tactics requires perspective. Class counsel spend years on a case, and a vindictive decision by a judge can attack the class at what has become its weakest link, the attorney, but Fine's tactics created conflicting interests with his clients. Fine's trial tactics may be found defensible, even exemplary, but Fine's skirting the ethical issues they raise is disingenuous.

Conclusion

Fine's case has been relegated to the fringe because his supporters are too often tax rebels looking to score points against "big government." Their and Fine's outlook accounts for the outlandish emphasis on the contrived argument that judges can be disqualified for failing to "disclose" what is public knowledge—surely Fine's knowledge—about County-provided benefits. Fine has stronger arguments: the actual bias of the judges, long-term coercive confinement's unconscionability, and the State Bar's misuse of the "moral turpitude" rule to evade the First Amendment.

Related essay: "Abolish unlimited-term coercive confinement for civil contempt"

74th Installment. Beware of Court Commissioners!—The Origination of the Richard I. Fine Disaster

Former Chief Justice Bird once declared in dissent that a certain case's moral was "beware of commissioners in referees' clothing!" (See In re Mark L. (1983) 34 Cal.3d 171, 181.) The Richard I. Fine case teaches a more general moral: beware of all court commissioners! Fine's ordeal, where the courts have jailed Fine for almost a year to force him to answer a judgment-creditor's financial questions [water boarding, anyone?], began when Fine entered a commissioner's courtroom, and the commissioner didn't let him leave. While I still don't sufficiently understand the immediate dispute concerning Fine's imprisonment seven years later, a document by one of Fine's class-action clients led me to the first cause of this legal catastrophe: the Court of Appeal's disingenuous review of Fine's contempt conviction by the embroiled Commissioner Bruce E. Mitchell. (See Fine v. Superior Court (2002) 97 Cal.App.4th 651.)

Fine suffered the reasonably feared consequences of stipulating to using a court commissioner, despite being entitled to a judge. Courts employ commissioners—judicial officers who are not constitutional judges—to save costs by serving in place of judges, a practice the California Constitution permits only in compliance with other constitutional requirements, including each party's stipulation to jurisdiction. (Cal. Const., Art. VI, § 21.) Since consent is a constitutional requirement, the court—never in these terms—asks for a favor; any party's refusal to stipulate means a judge must hear the matter. Although the commissioner's employment is constitutionally authorized only at the parties' sufferance, the stipulating parties don't choose the terms of their stipulation; they must take or decline the commissioner's services for all pretrial matters.

Never have I heard a lawyer wonder about what I had often expressed—and enacted—that stipulating to a commissioner unless justified by case-specific information is usually an act of disloyalty to a lawyer's client. The stipulation is irreversible, but entering it is voluntary; why would a plaintiff's attorney agree to be heard by an official who is less experienced, less qualified, more subservient to the powerful, more likely to be in defendant's pocket? The answer is that judges have great powers of reprisal. Lawyers don't always anticipate that the State Bar will be the judges' instrumentality, but they know getting on the judges' bad side is a bad idea. By routinely stipulating to the jurisdiction of commissioners, lawyers regularly sacrifice their clients' interests. This court-encouraged, unthinking violation of the central ethical tenet celebrating loyalty to client undermines attorneys' ethical sensibilities. Like writing-quality fraud, disloyal stipulation is territory the state-bar establishment won't occupy.

Events at the start of Fine's ordeal illustrate the profession's blunted ethical sensibilities about stipulations made for the court's convenience. Even an attorney dedicated to aggressive pursuit of his clients' interests succumbs to the pressure to stipulate, but that isn't to say Fine was at fault: Commissioner Mitchell committed acts of dishonesty; a disingenuous 2nd Appellate District panel ignored Commissioner Mitchell's distortion of the law and perpetrated its own distortion of fact to support the embroiled commissioner; and Commissioner Mitchell's tenacity, despite his legal-error's flagrance, smelled of corruption.

In trial court in a class-action tort case, Fine, representing the plaintiff class, signed the stipulation giving Commissioner Mitchell jurisdiction to hear all pretrial matters, the beginning of Fine's undoing. When Mitchell cited Fine for contempt for his numerous recusal motions, Fine argued that Mitchell lacked jurisdiction to try the contempt because his approval of the final settlement ended Commissioner Mitchell's authority to act as "temporary judge." Commissioner Mitchell insisted that the pretrial matters weren't completed because the members of the class retained the right to sue. The Court of Appeal rejected Commissioner Mitchell's argument, calling it "strained," a considerable understatement, since both binding authority and common sense contradict it. (Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 616 [commissioner's jurisdiction limited to stipulated matter].) When parties settled, the "cause" before Commissioner Mitchell was completed. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9 [definition of "cause"].) Contrary to Commissioner Mitchell, future causes derived from the present cause aren't part of the present cause. (Nierenberg v. Superior Court, supra, 59 Cal.App.3d at p. 617 [appealability test for a single "cause"].)

The Court of Appeal couldn't swallow Commissioner Mitchell's self-justification, yet the appellate court took no note of the unethical character of Commissioner Mitchell's desperately specious arguments to retain control; instead, the Court of Appeal offered a different reason to justify Mitchell's jurisdiction over Fine's alleged contempt. The Court of Appeal held that Fine had implied he consented to Mitchell's handling subsequent matter when Fine agreed to settlement terms that included continued court supervision. Wanting to find against Fine, but not by embracing Commissioner Mitchell's distortion of law, the Court of Appeal didn't recommend alternative language by which litigants could request continued court supervision without requesting it of this court. The Court of Appeal mischaracterized the case's facts to read into a general request for further judicial supervision a binding stipulation extending Commissioner Mitchell's specific jurisdiction.

Next Installment will further analyze the erroneous Fine v. Superior Court (2002) 97 Cal.App.4th 651.

kanBARoo Court. 30A Installment. Collateral Estoppel as a Tool of Judicial Bias in the Richard Fine Matter

Although Richard I. Fine’s supposedly corrupt motive for filing motions deemed frivolous formed the crux of the State Bar's case against him, the State Bar Court also made a strained attempt to allege dishonesty, lending a comic aspect to its account. A dispute arose over an apparent Freudian slip by a Superior Court judge in his statement of refusal to disqualify one Commissioner Mitchell, when that Superior Court judge, hearing Fine's motion to disqualify, contradicted himself. The judge wrote that Fine's objections were unfounded and also wrote that Commissioner Mitchell had been "not impartial.” Later, the Superior Court judge announced he had not intended the negation. Judge Honn concluded that Fine had lied to the Court of Appeal about the contents of the Superior Court judge's opinion, when Fine insisted the opinion was actually self-contradictory.

Judge Honn claimed the Superior Court judge had clearly made a “typographical error.” The characterization is curiously inaccurate, and it reveals how Judge Honn wears his bias on his sleeve. This is a most strange "typographical error," a term that "includes errors due to mechanical failure or slips of the hand or finger, but excludes errors of ignorance." (Wikipedia.) If the Superior Court judge successfully maintained his mistake was clerical in nature, he is entitled to correct it sua sponte, but the source of his mistake, if it was a mistake, looks to be his confusing the meaning of "partial" and "impartial," not a clerk typing the wrong alpha-numeric. Small gestures, such as mislabeling one contender's errors, are often key to detecting judicial bias. Although respondent Fine was entitled to a clear and convincing evidence standard of proof, Judge Honn tilted the playing field in the opposite direction, when he used a euphemism for the supposed error.

The Bar Court determined that Fine misrepresented the Superior Court judge’s opinion, treating Fine's disagreement with a judge as though it were dishonesty. No doubt the disagreement was serious, as Fine challenged the judge on characterizing judicial intent. But Fine was entitled to challenge the judge’s characterization, and entitled to treat the document as meaning what it literally said. The State Bar Court's finding by clear and convincing that the judge had made a typographical error expresses genuine absurdity, besides absurd pettiness.

But wait! Did the court even have to evaluate the evidence? In evaluating the typographical error matter, the Bar Court claimed to have conducted an independent evaluation, but in supporting many of its conclusions, the court applied the doctrine of collateral estoppel to Fine's contempt conviction. A contempt conviction is essentially a criminal matter, and while the applicable standard of proof is more than adequate, other problems should have deterred using the contempt conviction to effect issue preclusion. California courts do apply collateral estoppel liberally, having abrogated the traditional requirement of mutuality, but liberality in the formal requirements must be balanced by greater exercise of judgment. When applying collateral estoppel, California law requires that the courts address whether the specific application of the doctrine serves the interest of justice. (People v. Taylor (1974) 12 Cal.3d 686, 695.) Collateral estoppel based on criminal judgments is controversial in jurisprudence and requires particular scrutiny.

Two considerations should have led the court to decline to collaterally estop Fine: incomplete finality of judgment and differential motive to defend. Collateral estoppel requires finality in the collaterally applied judgment, but criminal judgments necessarily lack a civil judgment’s degree of finality, because they are subject to collateral attack for reasons intrinsic to the case. Reasonably, if you suffer a criminal conviction, it may be reversed, if say, witnesses condemned you by committing perjury, whereas, in a civil case, you must attack the perjury in the case itself. Fine's allegations of de facto bribery of Superior Court Judges amounts to an allegation of intrinsic and extrinsic fraud, which warrants collateral attack, since Fine's conviction is only as strong as his underlying civil case against the County is weak. Since Fine was still contesting the civil action, the contempt conviction lacked the requisite finality. The other implicated criterion, equal incentive to defend, requires that Fine have the same motivation to litigate the contempt conviction as the disbarment. Unlike disbarment, contempt is not inherently ignominious. Disbarment, moreover, is a more serious penalty than spending three days in the local jail. Fine lacked the same motivation to defend the contempt action as the disbarment, and the contempt conviction, consequently, was not probative for his disbarment case.

The court offered no analysis of whether applying collateral estoppel to the contempt conviction served the interest of justice. The court would then have to consider Fine’s contentions. The State Bar Court’s disregard for respondent argument is damning in general but expressly unlawful when the court applies collateral estoppel.