78th Installment. Too bad the Supreme Court will ignore Phil Kay’s excellent petition for writ of review

8^th in Philip E. Kay series
State Bar respondents are often unaware that the petition for writ of review, the ultimate review vehicle in State Bar Court, has nothing but its destination in common with the petition for review, the review vehicle in the courts of record. Court rules limit only the latter's length. State Bar respondents, otherwise enjoying fewer rights of review than other professionals, can file California Supreme Court petitions containing unlimited irrelevant matter. What explains the court's indifference to the length of a petition for writ of review, when it was so concerned about reading many short ones? It's simple: no one at the Supreme Court reads petitions for writ of review, not even a clerk. So I concluded when within hours of receipt the Supreme Court denied a respondent's petition I drafted.

Phil Kay has now filed a petition for writ of review. Of course, I'd prefer to be proven wrong about the outcome, but at least the petition isn't a completely wasted effort. It performs excellently in setting out and proving Kay's case; I'd recommend it to anyone wanting to understand this important State Bar case because of the petition's legal and factual truthfulness. This characterization doesn't apply to the opinions written by "courts" in the State Bar hierarchy (see disHONNest judge); and it must be admitted, it doesn't apply to the bulk of attorney submissions: being oppressed by the State Bar takes its toll on attorneys' ethics. (See The Richard Fine Story: An Objective Analysis.)

Previous kanBARoo court Installments touch the issues Kay's petition raises except for two related arguments that may have merit but which fail as stated. The arguments are summed up in Kay's theory that the State Bar's Kay decision is tantamount to a collateral attack on established superior-court verdicts. Specifically, Kay argues that a judge may only instigate a State Bar investigation by filing a complaint for what Kay calls "reportable actions." Business and Professions Code section 6086.7 mandates that judges shall report:

1. A final order of contempt imposed against an attorney;
2. Modification or reversal of a judgment in a judicial proceeding based on misconduct, incompetent representation, or willful misrepresentation;
3. Imposition of sanctions; or
4. Imposition of a Family Code civil penalty.

Kay's related claim is that being cleared of trial misconduct necessarily clears the attorney of State Bar misconduct for the same offense. Kay's argument limiting the meaning of "attorney misconduct" and Kay's argument limiting judicial reporting to "reportable events" both treat circumstances mandating prosecutory reports as if they limit prosecution.

If only they did. The statute states that the judge shall report certain events, not he shan't report others. The State Bar hierarchy loves legal over-reaching because it invites simple rebuttal based on the statute's express language. When applied to trial misconduct, this argument presuming limitation to "reportable events" can engender particular confusion. When an attorney appeals to a jury's passions but doesn't succeed—maybe the misbehaving attorney loses—Kay's interpretation implies the judge has nothing to report, seemingly reducing Kay's argument to the absurd. The correct answer—that the conduct involved resolves into another "reportable event," namely a contempt conviction—is hard to grasp from Kay's claim that misconduct requires prejudice.

No doubt, the meaning Kay wants to find in the reported-events statute is what the statute ought to say, and I've contended it's what it must say to survive scrutiny under the U.S. Constitution's equal-protection clause, since holding lawyers to a higher standard at trial imposes a qualitative disadvantage on represented parties. Short of the constitutional argument, Kay can reasonably maintain that the charges he faces are improbable without the statutory events.

Kay intends to make the most compelling case. His forced interpretation of the mandatory-reporting statute doesn't serve his purposes. He should lay a foundation based on his Constitutional rights.

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"

76th Installment. Give Philip E. Kay his day before an “honest-to-God judge”

7^th in Philip E. Kay series
Philip Kay resumed his accustomed role on the plaintiff's side by suing the California State Bar. State Bar respondents should seek new strategies because 1) strategies unanticipated by the state-bar establishment are more likely to prevail; and 2) the known options have a low probability of success. Kay's 92-page first-amended complaint contains a novel strategy for state-bar defense. (Case No. CFF-10-496869, Cal. Superior Court, San Francisco.)

Kay's clever idea asks the superior court to enjoin the State Bar from recommending his disbarment. A plaintiff can obtain injunctive relief or any equitable remedy only when remedies at law are inadequate, and Kay's suit will survive demurrer only if he shows the existing Supreme Court review process is sham. Kay's complaint—containing argument and numerous citations to case law and looking more like a brief—argues that allowing the State Bar to pass its recommendation to the Supreme Court will cost time and expense when Kay subsequently sues to vacate the judgment, irreparably harming Kay and his clients.

This is undoubtedly the weakest point of Kay's case. Kay sidesteps arguing that review by the Supreme Court is an infirm remedy at law by treating posttrial relief as remedy; but the alternative, arguing in superior court that review by the Supreme Court is not an adequate remedy at law, could seem worse. Any way Kay pleads the case, the likelihood of his prevailing in superior court is nonexistent; the likelihood of surviving demurrer, negligible. His object should be to bridge to the federal courts, and to satisfy federal jurisdiction, he must challenge the adequacy of the petition mechanism. To dispel the apparent absurdity of a contest of the petition's adequacy, Kay should emphasize that the Supreme Court rules on a petition for writ of review by exercising a separate plenary power over the State Bar, not in the Supreme Court's role as court of last appeal.

Justice Brown's In re Rose dissent summarizes the basic argument for the inadequacy of the petition for review:

As the court itself has acknowledged only recently, changes in our own rules made in the wake of legislative amendments to the administrative procedures governing bar discipline proceedings "relieve the court of the burden of intense scrutiny of all disciplinary recommendations." [Citation.]...Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of rule 954, an attorney facing suspension or disbarment from the right to practice her profession gets no hearing, no opportunity for oral argument, and no written statement of reasons—from this or any other article VI court. (In re Rose (2000) 22 Cal. 4th 430, 466 [Dissenting opn. by Brown, J.].)

Disdaining the "advances" of the California Bar system, which congratulates itself for providing fake judges to oversee attorney discipline, Justice Brown continues:

The host of practitioners of this and that trade, licensed and regulated by government agencies, has access to administrative mandamus in discipline cases, where judges of article VI courts review questions of law de novo and questions of fact under the substantial evidence standard. They get both a full plate of administrative due process and real judicial review. Before honest-to-God judges. [Citation.] (In re Rose, supra, 22 Cal. 4th at p. 469. [Brown, J.].)

Justice Brown stopped short of concluding the review procedure fell below minimum U.S. Constitutional standards for due process and equal protection: her dire prognosis proved over-optimistic. In re Rose was the Supreme Court's first and last State Bar case after the Legislature downgraded attorneys' entitlement to judicial review. The Supreme Court's blindness when denying review also proves its remedial inadequacy, as in my case, where the Supreme Court ignored the State Bar's fraud, publicly documented in my petition for writ of review; the identified perpetrator Melanie J. Lawrence remains on the State Bar's payroll.

State Bar rules lock respondents into their positions. Respondents must assess the risks of waiver even more carefully than in superior court. Kay may find it hard to rebut allegations that his filing a petition for writ of review, recently denied by the California Supreme Court, waived contest of the review mechanism.

_______________________

Corrections (March 21, 2010):

In my rush to publish, two errors crept into my account:

First the good news. Philip Kay's petition for writ of review remains unfiled, changing my commentary's nature from expression of regret to suggestion. This is good because suggestion is better than regret.

The bad news is that the Supreme Court considered In re Silverton, another State Bar matter, following In re Rose. (See In re Silverton (2005) 36 Cal.4th 81.) I should have written "In re Rose was the last petition for writ of review the Supreme Court granted." In re Silverton is the exception that proves the rule that the Supreme Court has abandoned the practice of reviewing State Bar cases. The Supreme Court first denied Silverton's petition and reviewed the case on its own motion, disbarring Silverton despite the State Bar Court's recommended suspension.

In re Silverton told State Bar respondents that only ill could come from filing petitions for writ of review: petition denied but attention granted. The Supreme Court's punitiveness in Silverton shows a Supreme Court as malicious as the State Bar, but I'm afraid the case weakens the argument that the Supreme Court provides no review.

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

In this rare case where state-bar opponents might support a bar-establishment prosecution, the Office of Professional Responsibility (OPR)—a federal-government component of the bar establishment—evasively used the wrong Model Rule of Professional Responsibility, botching the job. University of California law professor John Yoo and 9^th Circuit Court of Appeal Justice Jay Bybee are widely accused of conspiring to commit torture by deliberately distorting the law to deny that the CIA's waterboarding of suspected terrorists constitutes torture. The OPR can't make a case against war criminals Yoo and Bybee because it must avoid recognizing the reach of ethical principles that would prohibit institutional lawyers' common practice of drafting cya letters.
 

What's a cya letter?

 

On the Internet's Legal Ethics Forum, some ethicists didn't understand the concept of a cya letter. Here's a quotation that helps clarify the term:

The letter had made little impression on the reporters when it was introduced in the trial. It was written by von Bulow to the doctor who had treated Sunny for her first coma, in 1979, asking if Gailitis felt von Bulow had behaved in a negligent fashion when his wife was stricken. Prosecutor Famiglietti called it a "cover-your-ass letter" and asked the jurors in this summation whether a phone call to the doctor wouldn't have done as well as a formal letter. (http://tinyurl.com/ycwqnx5)

The prosecutor called von Bulow's letter a "cover-your-ass letter" because, despite the inefficiency of writing instead of phoning, von Bulow intended to make a record of concern for wife and capacity for remorse. The prosecutor's characterization impugns the value of von Bulow's letter as evidence for von Bulow's actual mental state.

A cya letter is one whose sole purpose is to rebut blame in advance. Sometimes a cya letter can achieve its purpose despite everyone's knowing it. When an attorney writes a letter declining a potential client's case, the memorialization effectively "covers the attorney's ass," were the client later to claim representation, although the client knows that the attorney is only regurgitating his own prior oral statements to protect himself.

Ethical issues long ignored by the state-bar establishment arise concerning cya letters in other circumstances, when others' knowing the motive for writing the letter defeats its purpose. As in the von Bulow case, where exposure defeated effectiveness, so in the matter of the torture memos: the effectiveness of a cya letter from the Justice Department's Office of Legal Counsel (OLC, which employed Yoo and Bybee) depends on successfully concealing from the real audience that the OLC authors cya letters on demand for the President. Yoo, Bybee, and both factions of the bar establishment, in academia and the Office of Professional Responsibility, were united—despite the serious division between the government- lawyer/defense wing of the establishment (Margolis, the Justice Department functionary who quashed the OPR's allegations of misconduct) and the prosecutorial wing (the OPR)—in one deceit: that Yoo was serving in an advisor role.
 

The Office of Professional Responsibility mischaracterized the roles of Yoo and Bybee as advisors to the executive branch

The OPR alleged that Yoo and Bybee violated two of the Model Rules of Professional Responsibility: rule 1.1, competent representation; and rule 2.1, candid, independent advice. The OPR ultimately invoked a standard distinct from either allegation: "duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." The OPR used many of the dirty tricks for which the state-bar establishment is known, including the usual failures to cooperate with discovery requests for exculpatory evidence, but most significantly, the OPR smuggled the term "objective" into the standard without explanation. The real reason for changing the standard: the OPR couldn't prevail based on lack of candor and independence because Yoo was known to hold an extreme view of executive prerogatives.


The OPR's legal analysis should have unpacked the distinct, even opposed, functions the Justice Department's Office of Legal Counsel merges to serve Presidential-responsibility dodging. While the OLC may offer advice, it also provides an imprimatur of legality for dubious executive acts. When the OLC serves this official clearing function, it is certifies the legality of the President's position rather than advising the President.


The OPR's mistaken choice of legal theory resulted from two influences, in unknown proportion: the bar establishment's evasion of the issues surrounding cya letters in general, on which members of the bar establishment are split and regarding which they agree to disagree; and the OPR's incompetence, shared with the rest of the bar establishment and expressed in its signature analytic shallowness. The memos were in the form of advice to the President; therefore, the OPR tacitly concluded, they are legally cognizable under the rules governing advisors; but, in its role of supplying independent legal sanction for the acts, the OPR's opinions are not, in substance, advice to client, and the lack of candor misinformed everyone but the executive branch. Yoo and Bybee's misconduct is covered by rule 4.1, prohibiting untruthfulness with third parties regarding material fact or law, and the general prohibition of dishonest conduct in rule 8.4. If those rules were the subject of the allegations, Brian Tamanaha's criticism of Yoo's "sincere extremist" argument would fully apply:

So yes, Yoo undoubtedly holds extreme views about executive power. But if we assume that Yoo is a competent lawyer—as there is every reason to believe—then he must have recognized at some level that his analysis distorted the law. This recognition, and the determination to issue the memos anyway, provides a basis to find that he recklessly (knowingly) distorted the law. (http://tinyurl.com/yz786ut)

John Yoo, too, mischaracterizes his role

Yoo joined the charade and accepted he was functioning as an advisor. The rule 2.1 exhortation to candor is an easy target considering Yoo's Presidential client. Yoo's client knew his views, selected Yoo as writer for that reason, and wasn't deceived or kept in the dark. The state-bar academic establishment defending the OPR argues without an apparent sense of amusement that Yoo's misconduct consisted in telling his client what he wanted to hear, but while yes-men don't embody the highest ethical ideals, the evidence tells that—his misdeeds more serious—Yoo was no yes man; it's said that if Yoo had been asked to draft a memo with the opposite point of view, he would have refused.

Yoo needed to provide a retrospective purpose for the memo that didn't require an "objective" account. If not legal advice and not a cya letter, what? Yoo's answer: "simply to determine whether the interrogation program could be legally justified." (Yoo's response, p. 21, http://tinyurl.com/ydjd4sl) But if that were the purpose, why shouldn't Yoo analyze conflicting opinions and acknowledge the minority status of his position? According to Yoo, "The audience for the memos was a sophisticated group of attorneys and policymakers who well understood that the questions were difficult and close, with moral, ethical, and political implications." (Yoo's response, p. 23.) A dogmatic and extreme analysis ignoring conflicting opinion and seemingly decisive opposing precedent (including death sentences for Japanese soldiers who had committed waterboarding), isn't what the audience described would want. Yoo misrepresents his cya letter's real audience, the public.
 

The rift in the bar establishment

The underlying dispute within the bar establishment is the same dispute as the Office of Professional Responsibility versus Margolis, the same dispute as the supporters of former Chief Trial Counsel Drexel in California's State Bar versus the Board of Governors, which removed Drexel. On the Legal Ethics Forum, Brad Wendel, Rob Vischer, David Luban, and Scott Horton represent the academic state-bar prosecutorial establishment, which espouses an officer-of-the-court jurisprudence. Horton, through his opinion of Margolis, says what he thinks of the government lawyer/defense wing of the bar:

[Margolis] has no real engagement in terms of partisan politics. He represents a culture of craven clientalism in which lawyers are not the champions of the law but instruments in the hands of their employers, dedicated to getting them the results they want. Margolis is prepared to do the bidding of his master, whether his name is Alberto Gonzales or Eric Holder. (http://tinyurl.com/yencelx)

Horton's ideology sounds elevated when run against institutional attorneys, but the outrage concerning obsequiousness serves as device to deride the entire agency concept of representation.

On the side of the state-bar-defense/government-lawyer wing, we find on the Legal Ethics Forum John Steele and Monroe Freedman, the latter showing the courage or the foolhardiness to propose a discussion of cya letters. Freedman admitted his own practice of writing these letters, in which attorneys claim to have an opinion that is other than their actual opinion or which conveys an unreal degree of conviction. Freedman points out that the ethicists have ignored the practice of writing cya letters. Without embracing the content of the torture memos or, for that matter, John Yoo's character, Freedman defends Yoo and Bybee from misconduct charges by acknowledging the torture memo was a cya letter:

Also, there is an assumption by some that Yoo or the OLC failed to give candid advice to the President. First, we do not know that to be the case. Private advice might have acknowledged weaknesses as well as strengths in the position. Second, we do not know that the President requested advice in the memo in question, as distinguished from a CYA memo (which lawyers frequently give to clients). (http://tinyurl.com/y9e3pon)

Freedman's comments are refreshingly forthright but only to a degree. He doesn't define cya letter; if he did, he would have to confront that a successful letter written to "cover a client's ass" requires the lawyer's untruthful statements. Freedman would have to explain how cya letters avoid the strictures of Model Rules of Professional Conduct 4.1 and 8.4. 

Conclusion

 

The bar establishment can't agree to condemn deceitful apology for torture, not only because the bar capitulates to political pressure, but also because it dare not expose the untruthfulness corrupting ordinary law practice.

See also: "62nd Installment. Why Prof. John Yoo and Judge Jay Bybee won’t be disbarred" and "84th Installment. The inherent untruthfulness of CYA letters."

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

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

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

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

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

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

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

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

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."

72nd Installment. “Legal ethics” should be about ethics: The law’s “communicative scandal” as an ethical issue

A critique of the state-bar establishment rarely undertaken inquires about the shape of an ethical-and-intelligent ethical code. The corrupt and incompetent state bars and their academic allies have distorted the subject matter of legal ethics itself so that it doesn't recognizably concern ethics. "Legal ethics is no more related to ordinary ethics than Madison, Wisconsin is to James Madison," wrote one blogger. An ethical code shouldn't be written to guild interest or for solving every problem concerning service delivery; its rules should express only the core ethical content of loyalty to clients and truthfulness in dealing with them, but it should deal with these matters comprehensively.

An example of a domain the state-bar establishment ignores, chosen only because of my familiarity, concerns law firms' brief-and-motion-writing policies, implemented despite knowledge that they produce inferior documents. The subject is worthy of being treated as ethical because it's about loyalty to clients or truthfulness with them; which of the two core ethical values is implicated depends on the terms of the firm's employment. When a client retains a law firm on contingency, the firm's failure to allow legal writers enough time to produce near-best quality is usually a failure of loyalty to client; when a client retains an attorney at an hourly rate, the issue becomes the firm's truthfulness, since producing work of mutually agreeable quality isn't untruthful or disloyal, although, arguably, the civil codes should discourage contracts for subpar legal performance. The issue of truthfulness is whether the firm misled client about extending firm's best efforts on client's behalf.

The horribleness of writing in nearly all legal briefs and the weakness of analysis in most has become a standing scandal in law. Overwhelmingly, lawyers who must write say they aren't given sufficient time to write well, and have never had a legal environment that invested in their writing skill. The culprit is another of today's crescendos of market failures. Law firms might find it profitable to allow associates enough quality writing time for improvement if the firm anticipated employing these associate attorneys ten years hence, but long-term employment isn't expectable. The legal profession's communicative scandal makes "good enough" standards for administering firms' legal-writing practices essential to the profession's self-respect, but these reasons of public policy don't justify treating the matter as ethical. Standards providing for the ample allocation of law-firm time to writing projects are ethical standards because inferior writing is a major way clients are willfully cheated.

Interlude 17. Statement by Philip E. Kay

Here's the latest development in the Philip E. Kay matter, covered extensively by kanBARoo court. The State Bar Court recommended yesterday a three-year suspension and five-year probationary period. Mr. Kay's State Bar status is unaffected until the California Supreme Court acts. kanBARoo court reserves analysis of the decision for another Installment, to present verbatim the response of Mr. Kay's office:

This decision admits it used default, as punishment, in violation of Business & Professions Code §6068(i), because I asserted constitutional and statutory rights of attorney client privilege and work product before answering questions, and demanded the right to have these issues heard and determined by an article VI court of general jurisdiction to determine whether the questions sought privileged information, pursuant to State Bar Rules. The State Bar Court did this knowingly to allow the Office of Chief Trial Counsel the ability to lie about what the Superior Court, Court of Appeal and Supreme Court found in their orders and opinions regarding these important civil rights cases.

In these matters, only after the trial judges were reversed on appeal and disqualified, pursuant to Code of Civil Procedure §§170, et seq., did they claim misconduct. So, either these judges lied in their orders denying misconduct, pursuant to Code of Civil Procedure §657(1) - “irregularities in the proceedings,” OR they lied in their testimony in the State Bar trial. This will create an uncertain and chilling effect by allowing unfit and disgruntled judges to lie about the record and impugn lawfully obtained civil rights verdicts, which have been upheld by the Court of Appeal and Supreme Court. The State Bar Court has allowed these disqualified judges to attack and undermine the very verdicts, which, they could not touch in the trial court under statutory and case law in California.

71st Installment. Plight of the Disciplined Attorney

The dominance of the state bars in legal ethics constricts the profession's ethical vision. State-bar moralism misdirects legal ethics toward enforcing compliance with judges and trivializes legal ethics with over-concern with negligent misappropriation. kanBARoo court will also explore the broader ethical horizons.

Ethical irresponsibility's first face is state-bar indifference to ethical problems bar prosecutors inflict on the profession; the California State Bar is heedless of the ethical morass suspensions produce after the attorney resumes practice. Attorneys disciplined for disobedience to court orders face bias from judges and harassment by opponents who bring the former respondent's State Bar record to the court's attention to support their sanctions' motions.

The State Bar has avoided noting the repercussions of its own operation, where an attorney's client can easily suffer prejudice or loss of confidence in attorney because of prejudice's scent. A client has little reason to anticipate that one consequence of attorney selection is judicial bias the legal apparatus blithely creates; a client legitimately expects that the legal system will strive to avoid prejudicing itself! Judges have so strong an interest in managing attorneys who have troubled the courts that protecting system integrity requires barring judges from accessing disciplinary information without cause.

Opposing a sanctions motion alleging a frivolous filing intended to harass is a serious matter for a previously disciplined attorney, as the former culpability will aggravate the offense. When the motion incorporates Bar-discipline history, the court should presume the mover's intent to threaten, this intent violating Rules of Professional Conduct, rule 5 – 100, barring Members from threatening State Bar action to secure civil-litigation ends:

A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

The State Bar would never consider applying rule 5 – 100 to punish harassing motions invoking prior-discipline records, and the litigation privilege precludes relief through civil procedure. (See Civ. Code, § 47.) The best immediate response to such harassment is to move for sanctions against the maker of the sanctions motion under the same code section. (See Code Civ. Proc., § 128.7.)

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.

Interlude 16. The Ronald N. Gottschalk Matter: State Bar Incompetence or Collusion

In the 2^nd Installment I opined that the State Bar's incompetence overshadowed even its malice:

These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.

kanBARoo court focuses on wrongful prosecution rather failure to prosecute. We shouldn't encourage the State Bar in any prosecutions because its integrity and competence can't be vouchsafed, and even the most culpable deserve better; but perspective requires recognizing the laxity interpenetrating harshness in a broad picture of incompetence. A particularly troubling laxity ramification is the possibility that the State Bar will delay prosecution of some of the most corrupt attorneys as remuneration for informing on other respondents.

Case in point the Ronald Norton Gottschalk case. In Interlude 8 I warned the public about this attorney, whom I termed a "legal predator," and I also noted that he eagerly played State Bar stooge when he threatened kanBARoo court with a RICO suit. Gottschalk was recently arrested on embezzlement charges. While his guilt remains for proof in court, the standard of proof for enrolling an attorney inactive (an administrative suspension to avert harm to the public) is far lower than proof, and the Bar is avid in its routine imposition of these suspensions for mere procedural reasons. Yet the November 2009 California Bar Journal (http://tinyurl.com/kzqxroy) contains this amazing statement, following Gottschalk's arrest, from Gottschalk's State Bar prosecutor, Paul O'Brien:

We believe public protection demands that Gottschalk be enrolled "not entitled to practice" at the earliest possible moment.

O'Brien went on to praise Investigator John Noonen for his "dogged pursuit of the case."

These  incompetent, self-congratulatory State Bar prosecutors and cops remind of nothing more than former President Bush when he commented on the "heck of a job" his staff had performed after Hurricane Katrina. The DA has charged Gottschalk with hard embezzlement of more than $350,000. Since the standard of proof for involuntary enrollment inactive is far too low, even a State Bar prosecutor could marshal the incriminating facts:

The board may order the involuntary inactive enrollment of at attorney upon a finding that the attorney's conduct poses a substantial threat of harm to the interests of the attorney's clients or to the public. (Bus. & Prof. Code § 6007, subd. (c)(1).)

The standard of proof is simple preponderance of evidence to establish past wrongdoing and, effectively, a beyond-reasonable-doubt standard for the attorney to rebut the presumption that wrongdoing will continue:

Where the evidence establishes a pattern of behavior, including acts likely to cause substantial harm, the burden of proof shall shift to the attorney to show that there is no reasonable likelihood that the harm will reoccur or continue. (Bus. & Prof. Code § 6007, subd. (c)(2)(B).)

The State Bar allowed Gottschalk to practice until his year-later arrest, an outcome bespeaking the State Bar's incompetence or collusion.

Interlude 15A. Axe the State Bar to Save the Profession

Every act of oppression or hypocrisy creates an equal and opposite reaction. The California State Bar's abuse of power and general ethical phoniness has helped demagogues further attack the legal profession's independence. Hitching its fate to a corrupt police agency, the legal profession has increased its vulnerability to denigration and imposition by the political powers

Governor Schwarzenegger's and Chief Justice George's recriminations against the Commission for Judicial Nominees Evaluation threaten lawyers' right to an independent professional viewpoint and show how independence is further threatened as long as the State Bar is professional expression's vehicle. Schwarzenegger, using a Court of Appeal judgeship as but another patronage award, nominated former State Senator Chuck Poochigian for the California Court of Appeal. The Commission for Judicial Nominees Evaluation, appointed by the State Bar's Board of Governors to conduct confidential interviews to assist in the evaluation of judge appointments, gave Poochigian its lowest rating, "Not Qualified," accurately describing Poochigian. Poochigian has no experience serving as a neutral arbiter, instead having specialized in advising politicians on further politicizing judicial appointments. According to Commission standards, Court of Appeal candidates are expected to have the qualities of collegiality, writing ability, and scholarship. Poochigian has never demonstrated scholarly capacities.

When Schwarzenegger vetoed the State Bar's appropriations, he also complained about the impartiality of the Commission for Judicial Nominees Evaluation. Schwarzenegger is not obligated to follow the recommendations, but he seeks to use budgetary threats to pressure the profession to conform politically, to pretend that legal scholarship and judicial temperament are irrelevant to Court of Appeal appointments and, if it suits the governor's purposes, any politician with a law degree merits judicial appointment. Chief Justice Ronald George chimed in his support, even though the Commission reports to neither the Chief Justice nor the Governor.

A presiding Court of Appeal judge conveyed a similarly threatening message when he tried to humble the Commission for Judicial Nominees Evaluation. Justice J. Anthony Kline admonished Jonathan Wolff, chair of the Commission after it rated nominee Kathleen Banke as merely "Qualified." Justice Kline in passing on Banke's nomination characterized the Commission's opinion of Banke as "bull crap." To those who value the independence of the legal profession, these examples of overreaching by the Governor and the judges prove that the profession's independence is at odds with the profession's subordination to the official state-bar police agency. If the State Bar is allowed to limp on, no doubt the politicians' squelching of independent professional judgment will succeed. The politicians and the state will compel the profession to proclaim every Poochigian a competent judge on the say so of the governor and Chief Justice.

Hold Schwarzenegger to axing the Bar because, otherwise, the likes of Schwarzenegger and George will control the profession.

Interlude 15. Disbarring the State Bar

In an astonishing but deserved worsening of fortunes for the California State Bar, Governor Arnold Schwarzenegger vetoed the State Bar appropriations measure. (See http://tinyurl.com/yla9zlo.) Without funding the State Bar is dead, one of the most favorable potential outcomes. Schwarzenegger vaguely demanded reforms, his motives no doubt predominantly fiscal, but Schwarzenegger should be held to his commitment. Since no serious reforms will be forthcoming, Schwarzenegger should axe the State Bar, which is so broken it does much more harm than good.

The veto confirms that the political establishment repudiated Drexel's extremism by removing him, and it continues to punish this arrogant, out-of-control police agency. The themes Schwarzenegger sounded show that critics' attacks have gained foothold in public-opinion's mainstream. Schwarzenegger mainly objected that the State Bar has not proven itself above reproach, most blatantly in the Sharon Elyce Pearl case, where a clerk embezzled 6.75-hundred-thousand dollars over eight years while the State Bar recklessly disregarded its duty to secure entrusted funds. Publicizing the Office of Chief Trial Counsel's statutory responsibility for the embezzled funds, kanBARoo court uniquely argued that the case exposed the State Bar's ethical hypocrisy.

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.