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.4^th _.) 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.

73rd Installment. Mendacious Judge Armendariz's Kay Opinion

(6^th in Philip E. Kay series)
The California State Bar Court's Judge Armendariz rushed to assure embroiled superior-court judges she would avenge their professional humiliation. Judge Armendariz stated in the third sentence of the State Bar Court Opinion (http://tinyurl.com/ybzkn2v) regarding respondent Philip E. Kay:

[S]omewhere during [Kay's] overzealous advocacy, he lost it, not the cases, but his integrity, professional decorum, credibility, and respect of the court.

The unjudicial, even schoolyardish, swipe at Kay shows a vicariously embroiled jurist. Her gratuitous slur on Kay's integrity foreshadows her helping the Office of the Chief Trial Counsel turn Kay's exercise of professional judgment into proof of his moral turpitude. The ethical justification for Kay's harsh three-year suspension lies with the moral-turpitude allegation—the attack on Kay's integrity—an important insight because the case's procedural posture limits Kay's arguments. The ethical role of the moral-turpitude charge allows Kay to rebut Judge Armendariz's opinion by focusing on that charge's falsity as a matter of law.


Kay's procedural posture is that the Bar Court imposed a terminating sanction when Kay refused to retake the stand; to prevail, he must attack the entry of default or rebut the charges as a matter of law, as all the State Bar's alleged facts are deemed admitted. If the facts are legally sufficient to constitute the charges, the State Bar must prove only the warrant for the terminating sanction. To rebut a case of selective prosecution like the one against Kay, a defendant must ordinarily introduce evidence, but relevant evidence is typically impossible to obtain, making most selective-prosecution cases impossible to defend. Unusual for a selectively prosecuted defendant, Kay can document collusion between the Office of Chief Trial Counsel, the Bar Court, and a complaining superior court judge, but Kay was precluded from proving his case at trial when state-bar provocations drove him from the witness stand and the Bar Court illegally entered his default.


Despite the terminating sanction and entry of default, Kay retains two arguments: 1) as kanBARoo court previously discussed, entering Kay's default was illegal; and 2) finding Kay committed acts of moral turpitude is plainly ridiculous. Although defeating the moral turpitude allegation wouldn't compel dismissal of all charges, it would strike at the ethical center of the State Bar's case. If Kay's acts weren't acts of moral turpitude, the whining judges are mere sore losers; the State Bar's need to destroy Kay's reputation derives from the common-sense requirement that Kay's objectionable conduct demonstrate Kay's moral unsuitability to practice law if the judges' age-old grudges are to warrant avenging. Kay should win on the State Bar's jurisdictional incapacity to enter Kay's default for refusing to continue testifying, but the Supreme Court won't reverse the decision on that basis because the last thing the courts want these days is having to participate in State Bar cases; the Supreme Court enjoys the expedient of denying review for no stated reason. Perhaps the Supreme Court might show some sympathy for a distinguished attorney the State Bar Court was trying to brand morally depraved for reasons unrelated to Kay's doing anything immoral.


The direct route to undermining the Bar Court's moral-turpitude thesis is to defeat the moral-turpitude charge:

By repeatedly filing duplicative and frivolous motions for an improper purpose, namely to harass and manufacture bias in a court and interfere with the court's proceedings, and by falsely accusing the court of bias, of assisting the other side, of treating the parties differently, and, thus, of judicial misconduct, respondent willfully committed an act or acts involving moral turpitude, dishonesty or corruption, in willful violation of section 6106.

If "moral turpitude" sounds worse than a lawyer's doing his job by "attempting to manufacture bias" through filing too ardently, your ear's verdict agrees with moral-turpitude's legal definition:

[A]n act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. (People v. Mansfield (1988) 200 Cal.App.3d 82, 87.)

The disparity between the charge against Kay and moral-turpitude's definition is that the definition requires Kay's violating a fundamental social duty, while the State Bar charge concerns breaches of narrow, legally constructed courtroom duties. A lawyer doesn't commit an act of moral turpitude by filing too many papers; filing too many papers isn't base and vile!


A deliberately false representation to the court is another matter, as deceit is moral turpitude, both commonly and legally understood. The Bar Court mendaciously accuses Kay of deliberately misleading the court, but Judge Armendariz concludes that Kay committed acts of moral turpitude by supposedly misrepresenting "facts" that are mere characterizations of the courtroom conduct of judges, such as claims a judge showed bias ("falsely accusing the court of bias"). Not satisfied to attack Kay for his alleged disrespect of judges, Armendariz uses the same comments that she had held prove Kay disrespects the courts to prove Kay was dishonest because his negative opinions of judges were untrue. Accusing judges of misconduct, even if the charges aren't true, isn't "base and depraved" unless the accuser knows the accusation false or accuses recklessly.


The moral-turpitude charge encapsulates the calumny against Philip E. Kay. The charge's outrageousness invites its demolition.

On Judge Armendariz's obfuscatory writing style, see Disputed Issues, "And/or and the (un)lawyerly practice of weaseling."

Interlude 14. That Miscreant Bill Clinton

So an attorney disbarred for alleged dishonesty is trustworthy to represent the U.S. Government ("unofficially") in deals with a nuclear power, lives directly at stake. The public avoids deep confusion only by perceiving disbarment as an act of punishment, not mainly a judgment on character. (See reference to poll at http://tinyurl.com/ld5vl8.) The spectacle brings to fore a question kanBARoo court raised last year: Is Bill Clinton really unsuited to practice law because of (as we say in California) acts of moral turpitude? Or, as kanBARoo court argued, was the Clinton disbarment (technically a five-year suspension) the most dramatic example of state-bar-establishment overreaching, crossing the Supremacy Clause?

kanBARoo court discusses the Bill Clinton disbarment at:

• 29th Installment. Why was the Arkansas Disbarment of Bill Clinton Unethical and Unlawful?
  
• 29A Installment. Why didn't Bill Clinton argue federal preemption?
  
• 32nd Installment. Disbarment of a President
  

(To defend Clinton against state-bar calumny is not to endorse his policies, such as his moralistic workfare measures.)

KanBARoo Court. 46A. Moral Turpitude Properly Construed

The California Supreme Court's debate on moral turpitude's meaning turned on constitutional considerations, such as achieving sufficient precision to avoid vagueness and keeping a constitutionally required nexus with legal practice. (See 46th Installment.) To avoid the inevitable expansion of vague definitions when due process demands greater precision, the California Supreme Court should adopt a narrow and exclusive deceit standard for moral turpitude. This proposal embraces In re Fahey (1973) 8 Cal.3d 842 (see 45th Installment) but goes substantially further toward a tailored, profession-specific definition, precise enough to hold lawyers accountable while affording them due process.

Previous Installments concluded that the moral-turpitude-standard's evolution confirmed a generalization of Brennan's first hypothetical: moral turpitude's circumference expanded to include all borderline cases. (See Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 93-94 [Brennan, J., dissent, "Clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power…"]; see, also, 45th Installment.) Moral turpitude expanded after losing its still insufficiently precise bearings, despite their substance having been recited by Fahey's unanimous court.

Applying the moral turpitude standard requires satisfying two conditions not always distinguished: 1) Moral turpitude must have a nexus with the practice of law; and 2) Moral turpitude signifies moral corruption. The outcome of applying these conditions doesn't conform either to Supreme Court dicta or conventional moralism. In the extreme, #1, specially defined, means murder is not necessarily a crime of moral turpitude. To equal extreme, #2 means the worst incompetence doesn't justify discipline. Regarding #1, the mass of one-time murderers show little recidivism, hence the crime's lessened relevance to moral character. Deceitfulness, on the other hand, differentiates psychopathy. Regarding #2, prohibited discipline for grossly deficient performance, objective methods more reliably assess competence. Thus, bar exams and educational requirements. An example of not distinguishing these two conditions is Acting Chief Justice Tobriner's concurring opinion in In re Rohan, where the acting chief justice bases discipline on deficient skills and habits instead of moral qualities. (See In re Rohan (1978) 21 Cal.3d 195, 206 [Tobriner, C.J., concurring, "Petitioner's carelessness in these {clerical} matters suggests that, for the protection of clients, his practice should be subject to probationary supervision by the State Bar."]

Two broad classes of acts constitute moral turpitude: deceit and force, asymmetric, in that "deceit" permits precise definition, which "force" defies. Deceit is well defined by absolute prohibitions specific enough to warrant their unification in a single tort. (See Civ. Code, § 1709 ["One who willfully deceives another with intent to induce him to alter his position to his injury or risk..."]; see, also, Civ. Code, § 1710.) Force's proper uses and their moral significance, on the other hand, are subject to reasonable disagreement. Distinct by avoiding the vagueness problem through greater precision, deceit is better suited as moral turpitude's practical and legal criterion for a second reason: in legal practice, deceit is moral turpitude's only form. Constitutionally mandated specificity requires using the better-tailored category. (See In re Rohan, supra, 21 Cal.3d at p. 205 [Tobriner, C.J., concurring].)

kanBARoo Court, 4th Installment: The State Bar & Its Academic Allies Undermine Legal Sophistication

Although attorneys form the primary intended audience for these installments, I fear that the Bar-establishment's mindset can damage our legal institutions beyond the direct effect of regulatory policies on attorneys. The following contribution to discussion by a bar-establishment academic makes me think I should have broadened even the primary audience. Both the position and reasoning expressed are frighteningly authoritarian, and they undermine everyone's basic democratic rights.

Bar-establishment academic Jeff Lipshaw discusses in a post entitled "Anonymity, Chatboards, and the Imus Defense" (http://tinyurl.com/2nb2ob) a proposal by a law librarian to require that bar candidates provide a complete list of all online names the candidate used while a law student. Lipshaw does not outright advocate this measure. Rather he gives it favorable coverage while expressing some undisclosed reservations, rather in the manner of Hillary Clinton when commenting on New York Governor Spitzer's immigrant automobile-licensing proposals. That Lipshaw has no fundamental differences with such a measure came out clearly when he responded to a commenter.

The anonymous commenter wrote "The last time I checked, the First Amendment protected anonymous speech. Perhaps our legal academics here need a refresher course in constitutional law."

Mr. Lipshaw retorted, "[W]hile there may [emphasis added] be all sorts of First Amendment protections around anonymous speech, there is no First Amendment right (or any other constitutional right) to be licensed by the state as a lawyer, any more than the Fourth Amendment guarantees you a right to board an airplane, or enter the Supreme Court chambers, without being searched (perhaps our anonymous posters need a refresher course in the Legal Profession). So whether or not there is an affirmative obligation to reveal your identity, one of the risks you take by yapping anonymously (subject to metadata, of course) is that you aren't really anonymous, and when something you thought you said anonymously that reflects on your ability to pass muster under the moral character requirements of the bar admission process turns out not to be anonymous, you have just encountered a real-world consequence of exercising a right. Sorry to burst the bubble."

My comment, not posted on the law professors' "moderated" blog was:

Inquiry that penalizes the exercise of First Amendment rights by preventing those exercising them from practicing law is certainly constitutionally prohibited. (See Baird v. State Bar Arizona (1971) 401 U.S. 1, 8 ["[W]e hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law."])The balancing tests applied to the Fourth Amendment matters do not mean that the search scenarios fall outside the Constitution. They show only that no right is absolute. You would be hard pressed to show a compelling state interest in students' anonymous and lawful postings.

As the Baird court established, a threat to the right to practice law is a general threat to liberty. Such a threat would pose considerable risk to liberty if it threatened only the rights of attorneys. But it does more. If you tell citizens that their "yapping" (Bar-establishment talk for free speech) will imperil their rightful options, such as becoming a lawyer, it restricts the exercise of their rights, regardless of whether the citizens are presently lawyers and even if they do not end up choosing the profession. Diminishing citizens' opportunities by dint of the exercise of rights interferes with their free exercise. The oppressiveness of the bar establishment, even when robed in academic gowns, threatens all civil society. And it is borne of the kind of incompetence in legal reasoning here demonstrated by Mr. Lipshaw, an incompetence that grows out of the State Bar enforcement culture.

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