Interlude 27. California Supreme Court vs. Stephen R. Glass: A tale of competing hypocrisies

3rd in the Stephen R. Glass series.

Yesterday, the California Supreme Court heard oral argument on the case of Stephen Glass; comments by the justices raise the question: who—Glass or the Supreme Court—is more self-serving. As kanBARoo court confidently predicted, the court is determined to deny Glass admission, but instead of using the occasion to uphold the centrality of honesty with clients (and, analogously, with Glass's deceived readership), the justices stressed Glass's duty to judges. (Source: The Recorder, “Court Has No Happy Ending for Infamous Fabulist,” Nov. 6, 2013.)  Justice Joyce Kennard: "As an officer of the court, should we believe whatever you tell the court?… A judge by necessity would sometimes have to rely on the utterances of an officer of the court." The court also used the opportunity to revive the antidemocratic (and perhaps unconstitutional) tenet that “being admitted to practice law is a privilege.” (Justice Kathryn Werdeger.)

Rarely do we obtain this glimpse of the justices’ conception of legal ethics as fundamentally a tool serving judges.

The Supreme Court justices followed In re Gossage (2000) 23 Cal.4th 1080, which holds that a candidate for admission who has committed acts of moral turpitude must demonstrate his rehabilitation by "exemplary conduct." The California Supreme Court indeed takes seriously its "practicing law is a privilege" authoritarianism: the Gossage court held, "Unlike in disciplinary proceedings, where the State Bar must show that an already admitted attorney is unfit to practice law and deserves professional sanction, the burden rests upon the candidate for admission to prove his own moral fitness." 

The Gossage matter is instructive in revealing how the Supreme Court exploits no-brainer cases like the Glass matter to impose a special moralistic regime on lawyers, with strictures unrelated to the core values of legal ethics. Gossage, even more clearly (if possible) than Glass, was a psychopath: he was convicted of a brutal voluntary manslaughter; he forged documents and, over a period of years, engaged in larcenous deceit of his associates. Like Glass, he lied about his history even as he tried to demonstrate his reformation.Yet, the Gossage court took the opportunity to drag into the case the applicant's Vehicle Code violations, including his citation for not installing seat belts. The court also complained of his failure to attend the resulting traffic-court hearings. These infractions don't relate to ethical failings; the attention they receive reveals the court's sheer class bias (although the immediate targets were wealthy enough): working people in California often must try to evade payment of traffic tickets.

The Glass and Gossage matters both illustrate the California State Bar Court’s legal superficiality. In each case, the Bar Court was prepared to admit the applicants, due to its judges' flagrant impressionism. Favoring impressive character opinions, which psychopaths easily garner, they ignored facts. Also evident is that Judge Honn, among others, learned nothing from Gossage.

The same State Bar Court that is so impressed by high-status witnesses supporting dishonest applicants will be unimpressed by honest applicants (and respondents) who lack social connections. The Supreme Court won't correct those errors, far more numerous. This is the key takeaway from the Gossage and Glass matters.

81st Installment. Loyalty to Client versus Candor with Court: Client Perjury and Related Bugbears

Officer-of-the-court jurisprudence—ethics that take seriously some lawyers’ self-important belief that they’re “officers of the court”—has been the most divisive issue among legal ethicists since the ABA’s 1908 promulgation of the Cannons of Professional Ethics. Where loyalty to client is pitted directly against duty to court, consensus dissolves, as it does concerning managing client perjury: one jurisdiction mandates practices another rejects as unethical. For decades the rule that a lawyer commits misconduct when he allows his client to commit perjury has been the most heated topic debated in law-school "professional responsibility" classes, but debate hasn't produced consensus. For adherents of officer-of-the-court jurisprudence, the issues are candor with the court and facilitation of crime. For adversarial lawyers, anointing lawyers agents of the court—duty bound to screen clients for truthfulness before the jury takes its turn—smacks of the Star Chamber, where lawyers were empowered to prejudge their clients' credibility and burdened with responsibility for their clients' lies. (A. Sterling, Truth, Justice, and the American Way: The Case against the Client Perjury Rule (1994) 47 Vand. L. Rev. 339.)

The threatening ascendancy of officer-of-the-court jurisprudence erodes lawyers’ loyalty to clients to where both bar courts and respondents don’t even notice client-centered ethical issues, in the following example, confidentiality. Consider the following as if it were a hypothetical on a Professional Responsibility exam; we’ll call it hypothetical because incidental facts have been changed to avoid identifying respondent attorney:

Attorney, having exhausted the allowed extensions of time, is late in filing an appellate brief. Attorney deceptively backdates the document, which the clerk mistakenly files. Attorney denies the backdating when opposing counsel challenges him, but before the court rules, attorney admits the deception. The court strikes attorney’s brief, causing attorney’s client to lose the appeal. After opposing counsel files a professional-discipline complaint, what culpability should the state bar find?

Neither the bar court nor the respondent recognized the confidentiality issue: the state bar treated the breach of client confidentiality as mitigating the deception's culpability, respondent as exonerating that offense's commission. Any second-year student who doesn’t find an issue of breach of client confidentiality in the hypothetical should fail the exam. But lawyers? However ethically serious they consider petty deception of the judiciary or however unseemly they consider baseless intransigence, lawyers should be unanimous on the case’s central ethical issue: should attorney unmask his own deceit? The answer should be a resounding No! Every lawyer must understand the most basic ethical premise of law practice: lawyers don’t fink on clients; despite many jurisdictions’ requiring it, ethical lawyers refuse even to report clients intending perjury. (A. Sterling, supra at p. 423, fn. 311 [anonymous survey of the District of Columbia bar revealed that 90% of those surveyed would call the perjurious criminal defendant to the witness stand and conduct the defense as if the client had testified].) Every lawyer should understand that legal representation is an agency relationship, where his client’s case may suffer if the court discovers attorney’s transgressions. (See J.A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court" (2000) 48 Buff. L. Rev. 349 [centrality of agency law in governing American lawyers since the Revolution].) Attorney sacrificed his client’s interests for personal moral purity—or for expected and received mitigating consequences.

Attorney’s knowledge that his filing was untimely is privileged because attorney acquired the information in the course of representation, but officer-of-the-court jurisprudence hugely distorted both parties’ ethical understanding. The state bar and respondent assumed the existence of duties to the court overshadowing client loyalty. They differed only in the state bar’s regarding the retraction as mitigating attorney’s lack of candor, while attorney regarded it as complete excuse—although attorney rectified his acts of deception by committing a worse ethical transgression, sounding in breach of confidentiality. Cleansing an attorney’s soul of guilt at a client’s expense sacrifices the client’s interests to the attorney’s no less than betraying a client for money. Between deceiving the court and undermining his client by disclosure, the uncharged disclosure of the filing date’s falsification is the severer transgression.

All fundamental legal rights depend on attorneys' performing their duty of loyalty to clients. The right to be heard withers without attorneys who loyally represent their clients, and the tyranny of lawyers’ morality oppresses more than does ordinary corruption: from Watergate to the torture memos, moral ideology rather than personal profit motivates the greatest lawyerly crimes. While absence of due process in the bar courts rebuts calls for harsher penalties, discipline is lax for lawyers who excuse their disloyalty because they subject clients to conscientious dictates, not greedy appetites. Contrast attorney’s actual suspension for less than six months to the two-year suspension a state-bar court imposed on a lawyer lacking moralistic self-justification for deceiving a federal court about filing dates.

70th Installment. Mark E. Brennan, Part 3: Sentencing

Third in Mark Brennan series

For lawfully hijacking the respect the jury ordinarily reserves for the judge, the Colorado Supreme Court suspended Attorney Mark E. Brennan for a year and a day, announcing to trial attorneys in Colorado and beyond: exercise your professional judgment about how much deference your client's interests allow a biased judge, and you risk not only the reasonably contemplated mistrial and fine for contempt but your livelihood. The court is unembarrassed in signaling its solidarity with Judge Blackburn for the humiliation he suffered in his own courtroom; summarizing the case, the court admits it punishes Brennan for his supposed bad manners (his "impertinence"):

Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.

The court flaunts its vindictive motives yet pretends to apply Colorado ethical standards against disrupting a tribunal and engaging in conduct prejudicial to the administration of justice. Judge Blackburn had admitted the record doesn't support his conclusions, and the same holds for the ethics court, allowing the verdict to avenge Brennan's "impertinence," instead of reflecting the evidence: "Simply recounting Brennan's myriad and varied transgressions does not adequately capture the pervasiveness and the magnitude of his prejudicial behavior," Judge Blackburn had written.

Mark Brennan did what any trial attorney must try to do when confronting a trial judge biased against his client yet acting within his discretion: he replaced the judge at the pinnacle of the jury's respect. The maneuver's difficulty is attested by the contempt citation Brennan earned in its execution, but the possibility of this maneuver's success preconditions a real jury trial. Standing for prohibiting success in this subtle encouragement to a jury's moral mutiny, officer-of-the-court jurisprudence would guarantee the judge his respect by right, when the law only gives the judge every procedural advantage to maintain it.

Brennan tried to introduce his deposition of the jury foreman as evidence in the discipline case, but the court didn't allow it; Brennan's success was his real transgression. The tenor of the jury-foreman's exculpation:

You were absolutely polite. You tried your best. I know you did. You could tell. The other jurors could tell that you did. You didn't disrupt the trial in our hearing... ¶ But as far as the jury impression, no, it was a clash of styles. You were not impolite. You were an absolute gentleman. (Dillingham Deposition, January 2009, 54: 6 -- 14.)

Brennan had won over this jury, despite the court's bias. When the jury foreman heard of the original verdict's partial revocation, she perceived it as "an attack on me, and … an attack on the jury... [A]n attack on a jury that he portrayed as so ignorant and so naive that we could not see through the BS that was going on to get to the question ..." The pedestal where jurors put the judge, which courtroom procedure takes such pains to construct and repair, was leveled: "I would like to sue for libel. ... This is a judge that I told everybody I met I thought was the epitome of what a good judge should be.... It was Alice down the rabbit hole." (21: 7 -- 12.)

Courtroom justice involves delicate balances, and among the balanced factors is the right of an attorney to try to turn the jury's respect away from a biased judge. Officer-of-the-court jurisprudence, enforced by the state bars, is an aberration threatening to become the rule which emasculates the jury trial.

66A Installment. Officer-of-the-court jurisprudence

Second in the Mark Brennan Series

Judge Robert E. Blackburn's complaint in the Mark Brennan disbarment case permits a glance at the jurisprudence grounding judges who seek to impose state-bar discipline for ordinary trial conduct. Judge Blackburn approvingly quoted the Polansky court ("Complainant's Response to Respondent's Motion To Dismiss"):

Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means for achieving the court's ultimate goal, which is finding the truth.

(Polansky v. CNA Ins. Co. (1st Cir. 1988) 852 F.2d 626, 632.)

The Polansky court and Judge Blackburn express three opinions that are contrary to professional consensus: 1) A lawyer's primary responsibility is not to his client but to the court; 2) zealous advocacy is encouraged only as a means of reaching the court's goals; and 3) the court's ultimate goal is truth.

Usually, first-year torts classes dispose of the cartoonish view that the court's ultimate goal is truth. Many public-policy considerations having nothing to do with truth's pursuit drive civil procedure, but although the Polansky court and Judge Blackburn are outside the professional consensus, the consensus makes a dangerous concession in accepting that the adversarial element serves truth finding: truth emerging from conflict. Our legal system as a whole obviously doesn't subordinate all interests to truth finding, yet many lawyers believe adversarial procedures exist to promote truth. This view leads the consensus toward endorsing Polansky's conclusion, while rejecting its reasoning — leads to limiting legitimate adversarial conduct to what furthers truth finding; but truth finding isn't adversarial procedure's distinguishing function or its overarching purpose. In overall accuracy an inquisitorial system is inherently superior to an adversarial one: does anyone think that testimony from hired gun experts better informs a jury than neutral investigators chosen by an unbiased judge? A trade off of lower accuracy for less rights-violating injustice, adversarial procedure favors rights protection over truth finding. Rights protection, not truth finding, justifies adversarial process.

Judges who believe fealty to the court's truth-finding ideals outweighs loyalty to client will consider extraordinary loyalty as misconduct. These judges' naive moralism doesn't promote precision; the judge espousing an open-ended duty owed the court is subjective. A court holding an officer-of-the court jurisprudence will be dissatisfied for the same reason a client is unhappy: the lawyer's limited zeal for itself.

In contrast to the moralism of Judge Blackburn and the Polansky court, the Koufakis trial court (unfortunately reversed) took a sophisticated, nonmoralistic perspective in deciding an attorney's conduct didn't warrant a new trial. Pointing out that "wrenching little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial, and in my opinion there was not the prejudice [which the defendants] suggest," the judge further explained to the attorney moving for an order declaring mistrial:

Your style is entirely different from Mr. Berg's, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. ¶ Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. ¶ If you had mentioned the Mafia, then they would have taken you literally. ¶ Mr. Berg's mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. ¶ They simply didn't take this kind of analogy seriously. ¶ This is the kind of exaggeration that they had come to expect from a flamboyant individual.

(See Koufakis v. Carvel (2nd Cir. 1970) 425 F.2d 892, 901.)

The trial judge candidly admits he prefers the less flamboyant style — it's easier on the judge. When a less insightful or less honest judge replaces concrete legal reasoning with moralistic judgments, often they screen for the judge's prejudices.

Click for entire Mark Brennan series

Ten-Day Sale

I live in the high desert of California, where this time of year the temperature regularly climbs above 100 degrees. One seldom ventures outside in this weather, leaving abundant time for work. Seeking more work to occupy more time, I'm declaring a ten-day sale on legal-writing projects. This sale, ending after August 10, features a $50 per hour fee. For any state-bar or vexatious-litigation matters, the price is only $30 per hour.