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.

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.

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.