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.

Conclusion

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.

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.

79th Installment. Chief Trial Counsel's Office Admits Grave Lapses in Bar Prosecutors' Legal Ethics

9^th in Philip E. Kay series
In its brief opposing Kay's petition for writ of review, the California State Bar admitted that, in prosecuting cases initiated by judges, the Bar habitually commits acts of moral turpitude. These admissions, made only to avoid more damaging inferences by the legal community, establish as never before that the State Bar violates respondents' due-process rights and prosecutes at cross-purposes with its statutory public-protection role.

1. Concealed ex-parte communication.
The Konig case, an employment suit by a State Bar prosecutor, laid bare the State Bar's motives. The remarkable story is that the State Bar tried to attain two illicit objectives with one turpitudinous act by concealing from Kay that Judge Anello was the complaining witness. This was useful for two reasons. First, the State Bar secured unlimited time to prepare its frame-up. Second, the State Bar advanced its project of rehabilitating Judge Anello's reputation by concealing the judge's role in that project's initiation.

Konig: "If Judge Anello is not entitled to know why the NDC hasn't been filed and why he hasn't been able to reclaim his reputation publicly, then I think someone else needs to explain that to him." (Memo from Konig to superiors (August 4, 2003).)

Recouping a judge's reputation isn't an authorized purpose for State Bar prosecutions. It's a corrupt purpose: we don't even know the State Bar's reward for pleasing judges, and it's a little surprising that nobody in the legal-ethics world wants to find out. The evidence unearthed in the Konig case, records of conversations between Konig and his controllers, show then-prosecutor Konig in discussions with Judge Anello behind Kay's back, as neither Judge Anello nor the State Bar informed Kay, as the rules require, when Anello complained against Kay.

Konig's superiors were concerned that Konig was endangering Anello's confidentiality, and Konig freely expressed his concern with pleasing Anello.

Konig: "The question of who initiated this investigation has now been raised by one of the two individuals. As previously indicated, to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Letter from Konig to Judge Anello (January 7, 2003).)

Konig: "I was more interested in having [Kay] admit responsibility as that would serve as an apology to Judge Anello and that I would consider entirely stayed suspension if that occurred." (Memo from Konig (August 4, 2003).

Why would it damage the State Bar's case if Kay knew the State Bar was discussing a complaint against him? The reason is that the State Bar was illegally circumventing the five-year statute of limitations.

This is all amazing enough, but it isn't new. The new information, supplied by the State Bar in its opposition to Kay's petition for writ of review is that the Office of Chief Trial Counsel routinely violates its Rules of Procedure by not counting judges as "Complainants." This practice denies respondents the due limitations period.

It is the practice of the State Bar to treat all complaints initiated by Judges as SBI [State Bar Initiated] Complaints. (State Bar Opposition at p. 20.)

The California State Bar Rules of Procedure rule 2.28 defines "Complainants": "'Complainant' is a person whose communication generates an inquiry or a complaint.'" Rules of Procedure rule 2403(d) establishes that investigations initiated by a judge's allegations are Complainant-Initiated, not State Bar Initiated. The rule giving the statute of limitations is Rule 51(a): "A disciplinary proceeding based solely on a complainant's allegation of a violation of the State Bar act or Rules of Professional Conduct shall be initiated within five years from the date of the alleged violation."

By plain meaning, the rule requires that the State Bar treat complaints by judges as complainant generated, but the State Bar's misconduct is worse than it looks. The State Bar knows a judge is a Complainant under the Rules of Procedure; otherwise, why did Konig's supervisors say his public identification would jeopardize the case? The State Bar also knows that its deviant rule interpretations confuse respondents, but it takes no steps to clarify the meaning: with this miscue and others, the State Bar exploits respondents' confusion, another example where the State Bar cultivates ambiguous rules as a weapon against respondents being the ambiguous schedule for petitions for writ of review. Most importantly, the State Bar isn't even consistent in treating judges' complaints as SBI, as the State Bar's letter to Judge Anello offers the judge his choice in the matter, a practice even harder to square with the express language of the Rules of Procedure.

Konig: "to preserve your confidentiality, the State Bar has classified this matter as a State Bar investigation without a listed complainant. As such, the two [Kay and cocounsel Dalton] will be told that the matter was initiated internally and no information will be provided related to you. If you would rather have the two know you sent a complaint form to the State Bar, please advise me and I will note the change for our records and so inform them." (Konig Letter to Judge Anello (January 7, 2003).)

2. Misrepresentation of Kay's unstained career.
Another claim the State Bar knows false is that Kay "has made a career out of histrionics designed to control and disrupt whatever courtroom he is in and unnecessarily prolong the process." (State Bar's Opposition at p. 31.) The charges will survive despite their implausibility only because a review court doesn't weigh evidence, but the State Bar has now put Kay's career at issue. The libelous outburst allows Kay to argue that a lawyer charged with repeated violation of court rules and decorum would have been found in contempt or at least sanctioned for such behavior. Kay's unblemished record refutes the State Bar's general case theory, which the quoted outburst summarizes.

The outburst compels readers and the reviewing court to ask, why did the judges who brought charges before the State Bar fail to sanction Kay at trial? Their excuses are lame. We hear Judge Weber supposedly avoided declaring a mistrial, despite scolding Kay for alleged misconduct, because the judge wasn't certain Kay prejudiced the jury.

When Judge Weber found that it was a close call whether defendants were denied a fair trial, she was not holding that it was a close call whether Petitioner committed misconduct, but whether his misconduct fundamentally prejudiced the other party's right to a fair trial. [Citation.] In fact, as she testified she found his conduct before her "appalling." (State Bar Opposition to Kay's Petition for Writ of Review at p. 21.)

Completely lacking in credibility (and irrelevant—who cares if Judge Weber was "appalled"). Repeated misconduct in various courtrooms always creating "close calls" —but never more—flies in the face of the laws of probability. Judge Anello even testified that Kay announced he wouldn't obey the judge's so-called orders. This announcement suffices to find contempt unless the commands weren't orders; but judicial one-upmanship, as any trial lawyer knows, is all too common when incompetent, obsessive-compulsive judges micromanage trials. The futile warnings of such judges don't constitute orders, but the State Bar's main "evidence" consisted of quoting these judges remonstrating with Kay and applying labels like "appalling." While factual implausibility isn't a review criterion, the eagerness of the State Bar to pursue a case so implausible, its smug rejection of Kay's concern for plausibility just because the State Bar can get away with it, deserves the widest condemnation from lawyers and ethicists.

3. Absurd charges alleging an ancient citation error.
The State Bar's readiness to pursue absurd charges based on technicalities is also demonstrated by the ridiculous charge concerning a case-law citation, yes, a single citation. The State Bar found that Kay willfully misled the court by offering an inapposite citation, when the document containing the citation was a) written by cocounsel; b) presented more than five years ago.

What does the State Bar hope to gain with a charge so absurd and so late: discipline for an alleged miscite five years ago, not even committed by Kay? The question can be answered precisely. To maintain its credibility, the State Bar Court labors to preserve a facade of substantial review. Had entry of default not precluded matter's hearing by the Review Department, review would eliminate the miscitation charge. The State Bar's routine practice includes charges it knows are absurd; the State Bar justifies this practice by what its prosecutors call "adversarial procedure." Including frivolous charges enables the State Bar Court's Review Department to appear to perform review. Including frivolous charges also often allows the State Bar Court to uphold the charges, despite the absence of proof, when a respondent defaults. Issuing charges the State Bar knows are unsustainable is as clear an example as you'll find anywhere of "moral turpitude." (Bus. & Prof. Code, § 6106.)

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"

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."

69th Installment. What (the absence of) medical ethics can teach legal ethics

Medicine — which in California had its Drexel era back in 1991, inflicted by the Legislature — is ahead of law in the arbitrariness and malice of its policing mechanisms. The advanced morbidity of both medical ethics and its supposed enforcement holds lessons for the direction of legal ethics.

After the peer-review "reforms" of the late 80s and early 90s, peer-review process has increasingly dominated physician discipline. The "reforms" provide nearly absolute immunity for those accusing physicians and those adjudicating physicians' alleged infractions. Peer review can deny hospital privileges, often tantamount to professional annihilation because of the tight connections between the public and private discipline bodies.

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but not specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.

(http://tinyurl.com/y8nyoh6.)

The immunity of all involved in an accusatory process amounting to a trial unconstrained by any law of evidence has made the peer-review process a breeding ground for anticompetitive conspiracies and, particularly, the persecution of doctors who advocate for patients or retain a vestigial desire to practice competent medicine. The abuses against doctors with integrity have earned the designation "the disruptive doctor doctrine," under which whistleblowers who complain about the quality of care are tried on trumped up charges.

In my experience, it is never those physicians who regularly place patients at risk with questionable medical practices or outright negligence that are the ones who raise concerns about patient care. It is those hotheaded physicians who are passionate about patient care and the quality of medical treatment who raise hell, take their grievances to hospital administrations, and demand change. And unless these same physicians are economically valuable to the hospital and/or have considerable political clout then they might as well kiss their careers goodbye.

(C. Rangel, M.D. at http://tinyurl.com/y98bc34.)

Corrupt medical-ethics' policing feeds from the initially low level of medical ethics, itself in part product of the number of students pursuing medical study hoping for enrichment, in part product of policing that was always guild oriented and never oriented to ethics based on patient loyalty — as many longstanding practices indicate; practical medical ethics accepts that physicians will shirk basic duties to their patients when in the physicians' interests. Practicing "defensive medicine," for example, has long been acceptable, even mandatory. In countenancing defensive medicine — certainly never disciplining it — physicians ratify methods that don't benefit, indeed, even harm the patient, at least causing inconvenience, often worse. The "defensive" physician is disloyal to his patient and probably lies to the patient about the tests' medical necessity. Spacing office visits for the sake of revenue collection — because, for some anachronistic reason, physician fees are tied to patient contact — is another professionally accepted practice that is disloyal to the patient. The patient is, again as a rule, lied to about the medical necessity of the contact but, increasingly, setting office visits for billing purposes is cynically accepted as realistic. ("Crackpot realism," in C. Wright Mills's phrase.) Looked at from an objective ethical standpoint — without succumbing to the root vice of community standards for a scientific activity — one should say that any doctor doing any of these things should be hauled before a medical board for moral turpitude in medical practice — if only medical ethics were about patients' interests or the doctor's fundamental honesty in patient dealings.

Deterioration in medical ethics accelerates. Most stunning have been the revelations that psychiatric pharmaceuticals are usually validated only by studies the drug companies finance, design, and control. This corruption implicates renowned professors at the nation's foremost teaching hospitals and medical schools. The defective policing of medical ethics has stemmed from hysterical reaction to real gaping defects in physicians' ethics but more directly from the refusal of physicians on peer-review panels to take ethical responsibility for patient welfare, the universal acceptance that peer-review panels will provide competent and sincere review only if the reviewers have immunity from any resulting civil litigation. The objective ethicist may ask why should physicians feel free to disregard their duties to patients and their duties of truthfulness in matters concerning patient welfare because of the possibility they may be sued for defamation? An incredible ethical laxity; if physicians participating on a peer-review panel lie about their conclusions to avoid possible litigation, this self-serving conduct is an ethical violation by any standard true to ethics' roots in loyalty to patient and honesty in matters affecting the patient's welfare.

The decline of medical ethics consists of disregard for loyalty to patient and honesty in matters involving patient welfare. The deterioration involves putting economic self-interest and institutional interest above patient loyalty and truthfulness, an emphasis not deflected by increasingly harsh physician discipline; indeed, furthered by discipline for the wrong offenses. Doctors are increasingly disciplined for failure unconnected with loyalty or truthfulness, the twin pillars of genuine professional ethics: in one typical instance a doctor was disciplined for failure to report what the authorities believed was child abuse of a patient's neighbor. (See http://tinyurl.com/y8nyoh6, supra.) Harsh and arbitrary discipline meted out by the peer-review panels and medical boards reinforces physicians' disloyalty to patients by punishing doctors for failures of dual loyalty to third parties, including state authorities. The law analogy is disciplining attorneys because their conduct successfully advances their clients' interests: discipline to uphold the authority of judges and respect for bar.

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.)

Interlude 12. State-bar establishment: Pro bono for the banks

As the economic depression deepens so does political oppression, as the police are the instrument forcing an adverse orderliness on the enraged and impoverished. When banks today mount a collections' offensive against the public that financed their rescue, what role will lawyers play in helping the poor and indebted resist the onslaught? None if the state bars, specialized branches of the police-prosecutor apparatus, have their way. In three jurisdictions, the state bars have already disbarred or denied admission to lawyers for carrying excessive debt. For the state bars, indebtedness is moral turpitude!

In New York, appellate judges, who form part of that state's bar establishment, held Robert Bowman ineligible to obtain a law license for reason of moral character, that reason being specifically: "Applicant has not made any substantial payments on the loans. ... Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law." Bowman had incurred the typical huge debt to finance law school and then experienced medical adversity, impairing his ability to work and adding much more debt.

In another case, a Texas lawyer was disbarred for defaulting on his student loan; the court opined that Frank Santulli III's nonpayment showed his untrustworthiness to represent clients and raised the specter that "he will harm a client, obstruct administration of justice or violate the disciplinary rules." To make no mistake on where the bar stands on indebtedness, the Texas State Bar had conditioned Santulli's license on paying his debt. A news report informs that the Texas case isn't isolated: Minnesota had already disbarred an attorney for student-loan default.

62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred

The Justice Department leaked a draft report on its investigation of John Yoo and Jay Bybee. The report recommended that state-bar authorities investigate the pair — buck passing: the Justice Department is shirking its prosecutorial duties. The Justice Department can't be so naïve as to anticipate the state-bar establishment might disbar Yoo and Bybee.

Yoo and Bybee had devised irrational legal justifications for torture, helping the Bush Administration disguise its criminality. Even within the Administration, the incoming Office of Legal Counsel repudiated the Yoo-and-Bybee memos in 2003. No lawyer I'm aware of has publicly agreed with the memos' conclusions following publication, and their universally adverse reception discredits the common verdict that the opinions were ordinary errors of law. Since frivolous positions are defined as those unacceptable to any reasonable attorney, universal legal rejection of the memos' conclusions proves their frivolousness.

The torture memos aren't merely frivolous; ulterior motive also makes them vexatious. Frivolous positions often are honest mistakes of law, particularly those advanced by pro-se litigants. Unlike vexatious legal positions, frivolous ones don't show moral turpitude—a standard in California and one I have argued, correctly interpreted, serves as the proper standard for attorney discipline. The Yoo-and-Bybee memos were vexatious in their malicious intent, and their authors committed acts of moral turpitude. Jay Bybee, who coveted the 9th Circuit judgeship that became his reward, is a corrupt careerist. John Yoo is a staunch neoconservative reactionary, who, like his cothinkers, disguises absence of integrity with smatterings of utilitarian ethics. When Yoo decides a policy is best for the "general welfare," he simultaneously decides for its ethical commendability, reaching preconceived conclusions on moralistic grounds.

The state-bar establishment will never disbar Yoo and Bybee, despite their acts of moral turpitude causing injuries extravagantly worse than possible for ordinary lawyers. The concept of the state bar's enforcing ethical standards is thin veneer for pursuing political objectives of state, economic advantages of guild, and financial interests of its own, as the profession's supposed aversion to moral corruption isn't even deep enough for consensus that Yoo and Bybee committed disciplinable offenses.

To avoid challenging state-bar oppression and the ethical hypocrisy justifying it, the California-State-Bar-establishment's loyal-opposition Association of Discipline Defense Counsel justifies state-bar selective enforcement by urging that state bars don't function as an "ethics police" but as a "consumer-protection agency." The analysis is shallow in discounting the generality of unethical conduct that undergirds any protective system. If discipline is to protect consumers, ethical-rule breakers must be apt to repeat. If generalization is impossible, consumer protection is chimera. Pure consumer-protection analysis favors disbarring Yoo and Bybee because they're ethically unfit to practice law, but state-bar bureaucrats' charging Yoo and Bybee for incompetent legal reasoning, willful or not, is absurd to imagine, more so after a prestigious legal academy decided Yoo is sufficiently competent for hire, only 17 U.S. Senators voted against confirming Bybee for the 9th Circuit Court of Appeals, the 3rd Circuit arguably adopted the Yoo-and-Bybee analysis into law, House Speaker Pelosi acquiesced. and the dean of the Chapman University Law School (where Yoo is visiting) commended Yoo's torture analysis.

See also: "75th Installment. The Torture Memos & the Tortured Legal Ethics Justifying CYA Letters"

60th Installment. California State Bar becomes bar-establishment laughing stock

The California State Bar became laughing stock of the State Bar Establishment when the attorney general charged clerk Sharon Elyce Pearl with embezzling $675,000. She had persisted for eight years before the California State Bar noticed. (See http://tinyurl.com/ceydkh)

A Legal Ethics Forum blogger posted:

Sad Irony: State Bar victimized by (alleged) staff embezzler: We've all heard countless times about a solo practitioner facing disciplinary consequences because the lawyer's admin embezzled funds. (http://tinyurl.com/cz9rde)

The State Bar Establishment's embarrassment isn't misplaced. The California State Bar, which terms misappropriation by staff a supervising-attorney's willful act—casually adding charges of moral turpitude when any evidence of failure to supervise can be found—proved during an eight-year period that its moralistic stance is a pose. Although the clerk didn't embezzle clients' funds, the ethical culpability is the same because the State Bar held the money as fiduciary of the people and government of California. "All property of the State Bar is hereby declared to be held for essential public and governmental purposes in the judicial branch of the government..." (Bus. & Prof. Code, § 6008.) The Office of the Chief Trial Counsel, the prosecutorial entity, bears blame because that Office is charged with internal-oversight duties by the same law authorizing the State Bar's prosecution of disciplinary complaints. (Bus. & Prof. Code, § 6044.)

If the board of governors, which runs the State Bar, can't supervise ordinary commercial operations, how can it supervise the Office of the Chief Trial Counsel? The board of governors was designed to be ineffectual: consecutive (three-year) terms are prohibited, only annual meetings are mandated, and six members must not be lawyers. The Legislature disempowered the board of governors intending to empower the California Supreme Court, the State Bar's other supervisor, but since the Supreme Court has shown that its objectivity departs when the court hears allegations against its State Bar administrative arm, the feebleness of the board of governors unfetters the Chief Trial Counsel. (See Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4.) Even the sycophantic State Bar Defense Establishment complains about the abrupt change in punitiveness and moralism when a new Chief Trial Counsel takes over.

This comedy isn't one of the gravest harms wreaked by the lawless State Bar, but its reckless failure to supervise public appropriations proves its ethical hypocrisy.

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.

57th Installment. Against sentimentalizing misappropriation

Irate clients lambast the State Bar for laxity, I castigate it for oppression, and the uninformed might conclude that the truth lies between. But both criticisms apply, not only because the State Bar is incompetent. Rather than lax or severe, the State Bar is unconcerned about the most important wrongdoings and exaggeratedly concerned about the less important. More exactly, its concerns follow its pecuniary interest.

What's the worst harm an attorney can inflict on a client? If you listen to the State Bar, you'll think misappropriation of the client's money. No doubt, an attorney who embezzles client funds is unfit to practice law and should be disbarred, but the State Bar's Chief Trial Counsel advises attorneys of a different threat to their livelihood when he states the main risk they run for disbarment is misappropriation by staff. (See http://tinyurl.com/bhlbnf) Embezzlement justifies ejection from the profession because it is a crime of deceit. Courts comment that "willful misappropriation" encompasses a broad spectrum of acts (Edwards v. State Bar (1990) 52 Cal.3d 28, 38), yet the State Bar denominates them with a single term. Embezzlement and negligent misappropriation are essentially the same only to the State Bar, which has a financial interest in the client trust funds. The courteousness of the Chief Trial Counsel's recommendation shows he realizes attorneys who trust their staff excessively don't manifest the despicable traits of character justifying disbarment for embezzling client funds.

The public's impression that negligent misappropriation proves lack of fitness to practice law comes from the State Bar's misleading sanctimony tying mistakes in handling funds to disloyalty to client. Misappropriation can impose damaging delays on recovery, but, a well-kept secret, losses due to fraud are reimbursable by expedited Client Security Fund procedures: the clients' protection from office fraud is not, today, the attorney's primary duty. But, in an earlier day, the California State Bar balked at establishing a client security fund. In 1969, the Court of Appeal commented on the State Bar's procrastination and on the absurdity of relying on the attorney as guardian of client funds. The court pointed out that by 1967, twenty client security funds were established in twenty foreign jurisdictions, 28 states and eight local bar associations, but "the State Bar of California, instead of leading in this work, has been lagging. Although the State Bar has been studying the matter since 1961 [citation], it has yet to take action." (Blackmon v. Hale (1969) 78 Cal.Rptr. 569, 582 [withdrawn for other reasons].) The Court of Appeal parodied the State Bar's moral message:

Turn your money over to me and I'll take care of it, but if I steal it you will have no recourse against anyone but me. Not only that, but as your attorney I may claim offsets for fees earned and disbursements made on your behalf and prevent any accounting or audit of the money for years, during which time you will have no remedies against me except to usual ones of any creditor pressing a contested claim against a denying debtor.

(Id., at p. 580.)

The State Bar partly abolished client serfdom in 1972, and the Client Security Fund indemnifies for misappropriation up to $50,000. With indemnification's advent, misappropriation isn't the worst injury an attorney's office can inflict on clients. The actual worst commonly happens in the ordinary incompetent handling of cases, usually not constituting actionable malpractice. An attorney's fundamental ethical duty of client loyalty is undermined by the State Bar's disciplinary emphasis on misappropriation (and disobedience). A loyal attorney must prioritize effort based on client legal interest, but anachronistic rules assigning the attorney exclusive personal responsibility for safeguarding funds distract attorneys from attending to the client's real interests. The State Bar's sentimentalizing of the attorney-client relation diverts attorneys, distorts professional ethics, and blocks further improvements in client security, like the needed tenfold increase in Security Fund coverage.

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].)