State Bar Attempts to Exorcise Transparency Ghost

Boo

A specter has haunted the State Bar of California for thirty years.   I know him well.  He gave me my first job at the State Bar.   He has gone by many names but you might know him by a more modern handle, Transparency.

He came from the TNT room.  The TNT Room was the file room at the San Francisco office, so-called because it was so full of files that it was ready to explode.  During the mid 1980’s the State Bar had an investigation backlog of more than 4,000 files.  The TNT Room eventually made the news about thirty years ago and that press coverage launched a major reconstruction of the discipline machinery under the direction of Prof. Robert Fellmeth,

A small piece of the new machinery was a new entity called the Complainants Grievance Panel (former Bus. & Prof. Code section 6086.11.)  The Panel consisted of seven volunteers, four attorneys and three non-attorneys.  Their mission was to review closed investigations on request of a complainant, to randomly audit a sample of closed investigations and issue an annual report assessing the operations of the Office of Chief Trial Counsel (OCTC.)  The purpose was to keep OCTC honest as it went about clearing its massive investigation backlog,  making sure the investigation process was not given short shrift and to illuminate problems with the process, i.e, transparency.  A staff support unit was created within State Bar, burdened with the title Administrative Compliance Unit.  I went to work for it in March 1989. I helped draft three years of Panel reports that are now lost to history, along with untold numbers of other reports.  We documented serious deficiencies in the investigation processes of the State Bar that helped pave the way for the Alarcon Commission (1994) to recommend important changes to the operation of the State Bar.

The State Bar has been the target of a large numbers of studies through the years, yet can never rid itself of the Transparency Ghost.  No matter how closely it is studied, its core remains impenetrable.  Some of those studies have led in circles;  some of the recommendations of the Alarcon Commission were meant to fix recommendations of the Kroker Commission ten years prior.  The guiding principle seems to be if we study this institution closely enough we will eventually understand it and maybe eventually trust it.

But we always seem to meet with some new revelation that tells us we don’t really know what is going on.   Continue reading

Supreme Court Puts Prosecutor Misconduct in the Discipline Cross Hairs

The reformed Rules Revision Commission had its initial meeting on March 27, 2015 and made news immediately with the disclosure of a letter written to the Commission by the California Supreme Court.  The Court asked the Commission to consider piecemeal additions to the current California Rules of Professional Conduct, and specifically the adoption of a specific rule on prosecutor misconduct (thank you to John Steele and Legal Ethics Forum.)  Such a rule exists now in ABA Model Rule 3.8, although it is unknown whether the Supreme Court specifically referenced that rule in its letter.  The ABA Model Rules based set of rules proposed by the former Commission included a version of Rule 3.8.  The Discussion Draft of that rule shows the California District Attorney’s Association opposing adoption of the California version of the rule and expressing the view that current California Rule of Professional Conduct 5-110 was adequate (see page 28) a view generally echoed by all the other District Attorney’s who commented.

The Supreme Court evidently disagrees (as did the first Rules Revision Commission.) Whether or not it sees, as Judge Kozinski does, an “epidemic of prosecutorial misconduct”, it perceives an ethics problem and it perceives State Bar discipline as part of the solution.  Didn’t the high court tell us just last September that that it perceived the California Rules of Professional Conduct primarily as a vehicle for discipline?

Events seem be crystallizing quickly, as they seem to do in the 21st century, toward an institutional response to the suddenly highly visible problem of prosecution ethics.   On April 9, 2015, the District Columbia Court of Appeals issued an opinion in a disciplinary matter finding that the ethical duties set forth in Rule 3.8 are broader than the disclosure duties imposed by Brady v. Maryland, 373 U.S. 83 (1963), and specifically rejected the respondent prosecutor’s argument that the lack of disclosure must be material, i.e. that there must a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial.  The most immediate backdrop is the continuing series of disturbing revelations regarding prosecutorial failures to disclose exculpatory evidences, including the revelation that resulted in disbarment and a jail sentence for a Texas judge, a former prosecutor, the every growing stream of exonerations of criminal defendants, and the highly publicized instances of alleged police misconduct that have shaken the image of the prosecutors’  close working partner in the criminal justice system.  Lurking somewhat deeper in the shadows is the decline in crime rates and the diminished (though still potent) strength of the “tough on crime” message in the political realm.  The cost and consequences of the “tough on crime” era are becoming clear; one of them appears to the creation of a “win at any cost” culture in our prosecution agencies that is at odds with the prosecutor’s duty to do justice.

The relationship between the lawyer discipline system and the criminal prosecutor is uneasy, to say the least.  Historically, the discipline system has never made prosecution of the prosecutors a priority.

The relationship between OCTC and the criminal prosecutors has always been close. Many OCTC personnel have law enforcement backgrounds, investigators and prosecutors, such as the Chief Trial Counsel, who was a United States Attorney; her predecessors were all former criminal prosecutors, with the exception of Scott Drexel and James Towery. The discipline prosecutors are required to forward information regarding criminal behavior to the criminal prosecutors and they have worked closely together on issues including the unauthorized practice of law.

While there may be reasons for making discipline of prosecutors a low priority in the past, the political context surrounding it has unraveled, rather suddenly and dramatically.

At the State Bar’s 15th Annual Ethics Symposium in April 2011, a heated exchange took place between former San Mateo District Attorney Jim Fox and representatives of The Innocence Project.  Both were invited to present after former Chief Trial Counsel James Towery (now Judge Towery) directed a senior State Bar discipline prosecutor to review claims by the Project regarding “claims that bar isn’t tough enough on prosecutors who violate the rules” in the words of the November 2010 California Bar Journal.  Less than two months later, Mr. Towery was forced out as Chief Trial Counsel, replaced with current Chief Trial Counsel Jayne Kim and Mr. Fox, who came out of retirement to become a consultant in the Office of Chief Trial Counsel (OCTC).   The evaluation of The Innocence Project claims never went forward.  Whether Mr. Towery’s willingness to at least examine those claims played a role in departure is unknown.  Mr. Fox was appointed to the State Bar Board of Trustees by the California Supreme Court after, by some accounts, management responsibilities OCTC’s San Francisco office somewhat more broad than those of a typical consultant.

Nevertheless, discipline cases against criminal prosecutors, formerly rare, have become less rare, especially when there has been finding by the criminal courts of misconduct.   The Ben Field case, initiated under the aegis of Scott Drexel in 2007, was a landmark event in this progression, a criminal prosecutor found to have violated his duty to have engaged in “a calculated scheme to hide evidence favorable to the defense” resulting in a four year actual suspension, a heavy hit for a decade long pattern of misconduct.  The California District Attorney’s Association (CDAA) filed an amicus brief in Mr. Field’s appeal to the Review Dept. arguing that several of the grounds for discipline involved questions of law that have not been settled. The Review Dept. did not address these arguments but found Field’s behavior sufficiently certain to find him culpable of a number of acts of moral turpitude.

If we are really in an ethics crisis, an epidemic of prosecutor misconduct, then we will should see more discipline prosecutions of criminal prosecutors, aided by whatever rule is ultimately approved by the California Supreme Court (which seems inevitable).  If we don’t, then we will be left to wonder:  Was the epidemic of prosecutor misconduct real or just the overworked imagination of overworked judges? Is the discipline system of the State Bar complicit in the creating a culture of tolerance for prosecutor misconduct?

Or did the rule itself deter prosecutor misconduct by focusing prosecutors on their ethical duties, on the possibility of professional discipline and thereby help create a culture in the prosecutor’s office emphasizing those ethical duties?  That last possibility would be ironic result given the Supreme Court’s discomfort with the “aspirational” use of the Rules of Professional Conduct.

Slippin Into Darkness

Slippin JimmyThe saga of Slippin Jimmy aka James McGill, Esq,, aka Saul Goodman naturally attracted the attention of ethics lawyers.  Ethically challenged lawyers are nothing new on television but they don’t come more ethically challenged than this character, who we first met in “Breaking Bad” where is served one of the chief catalysts for Walter White’s descent into depravity and death (?).  Ethically challenged lawyers are also nothing new to ethics lawyers and one of the best, Nicole Hyland,has given us a great running commentary on a fairly breathtaking catalog of ethical violations that we “Breaking Bad” fans know is only the beginning of Jimmy’s descent into ….Omaha.

And with the conclusion of this season’s run, courtesy of a crane shot of the iconic double line, we know that Jimmy’s actions reflect his choice.  We can understand some of the reasons he makes that choice.  Perhaps he can attain some success as a lawyer, maybe even some status as an associate or partner with that Santa Fe law firm but he literally flees from that because it can only remind him of the thing that he desperately wants but can’t get:  the respect of his brother.  There is something broken inside him, something his obvious intelligence, quick wit and considerable charm can’t overcome.  We are not really privy to the depth and intractability of his dysfunction until we see him with old and late friend Marco, seemingly his only other friend outside of Kim, the associate at the upper crust law firm HHM.

It’s a tribute to well crafted television that we can suspend our belief and think its real.  Even knowing how it ends up, right up until the moment when Jimmy turns around and abruptly leaves the Courthouse, I was rooting for him, for his success with the Santa Fe law firm, for his happiness, for some balm for his soul, only to realize with horror solidified by the brief colloquy with Mike at the parking booth that it was not to be, that it could not be no matter how much I or Jimmy might want it to be.

The world of “Better Call Saul” is, so far, noticeably less bloody than that of “Breaking Bad”  but it is bleaker in some ways.  Walter White had the pleasures of family and his son, as well as the somewhat more mixed bag that was his brother in law Hank.  Jimmy has his relationship with the distant and imperious Chuck, who lives alone and looks like he always has.  Chuck’s family is the law firm HHM, as we saw when the staff turned out to applaud his return.   Mike has only the debris of a family, his daughter in law, his granddaughter, and the boulder that carries in his soul, the ghost of his dead son, whom Mike killed even before his birth in his choice to become a dirty cop.  The only other family we have seen are the Kettlemens, who seemingly normal existence covers up a profound level of denial.  Kim, the HHM associate earnestly counting her steps to partnership, is the closest thing Jimmy has to relationship but both of them are so emotionally stunted that the weak hug is the most passion that they can summon. It is the lack of real connection that makes Slippin Jimmy who he is.  The only thing that lifts him out of himself is the thrill of the con.  While he cares about his clients, that just isn’t enough.

Legal ethics at the surface is about rules and statutes.  Deep down it about what makes the human beings we call lawyers tick.  All of us see lawyer behavior at all levels of the profession that makes ask “why would she do something so clearly at odds with the rules?”  Once we descend below the surface, fiction may furnish us with better understanding of what lies beneath.  There are absurdities in “Better Call Saul” that make no sense in terms of rules, chiefly that Slippin Jimmy would even be able to be admitted despite his background and correspondence school degree.  But that darkness that is gradually enveloping Jimmy is not unlike the darkness that dwells in every human heart, even perhaps especially the stone hearts of lawyers.  Not a real lawyer?  As exaggerated as he may be, Slippin Jimmy is all too real.

double yellow lines

There Were Giants in Those Days

In a sad coincidence, two leading lights in the relatively small world of legal ethics went dark on the same day, the second of March.

Monroe Freedman was legal scholar who virtually invented the topic of legal ethics as a matter of serious academic study.

Freedman

Freedman

Paul Vapnek was a San Francisco litigation attorney who championed practical legal ethics education for the practicing lawyers of California

Vapnek

Vapnek

Both Freedman and Vapnek were 86 years old.  Their careers bracketed the Golden Age of Lawyering, the roughly 50 year period that saw both explosive growth in the number of lawyers and unprecedented profitability by lawyers and law firms but also a decline in the status and prestige of the profession.  Not coincidentally, this period might also be called the Golden Age of Legal Ethics.   The decades of relative quiet since the  Progressive critique of the corporate lawyers of trust best expressed in TR’s 1905 Harvard Law School commencement speech (see Altman at 243,) a critique that helped spawn the 1908 ABA Canons of Ethics, became an incredibly active era of lawyer self examination.  In those early years, the State Bar of California formal ethics opinion in 1965, the first ABA ethics opinions in 1967,  the 1969 ABA Code of Professional Responsibility, the Clark Commission Report on Discipline Enforcement, also in 1969 (which decried the “slow, secretive” administration of discipline by local bar associations).  The impetus for ethical self examination increased after the involvement of so many lawyers, including the President of the United States, in the Watergate scandal.   President Nixon escaped discipline by resigning his California bar license but Donald Segretti was not so fortunate; as part of his discipline, he was ordered to take the new Professional Responsibility Examination  required in 1976 of new admittees.  California revised its Rules of Professional Conduct in 1975, the first major revision since 1928, following the ABA lead in the then new Model Code, but the ABA junked the Model Code in 1983 for the Model Rules, forcing California to revise its Rules again in 1987.

Segretti

Segretti

The Golden Years saw the creation of what might be called the Legal Ethics Infrastructure. Monroe Freeman was instrumental in creating the academic arm of the Infrastructure, the corps of law professors full and part time, who supply the intellectual heft to the Complex with scholarship and training lawyers.  Paul Vapnek, a practicing lawyer, worked in another part of  the complex, the traditional integrated and non-integrated bar associations,.  He creating the California State Bar Ethics Compendium as a resource for practicing lawyers in the 1970’s, the State Bar Ethics Hotline in the 1980’s, and served on the Rules Revision  Commission that revised California’s Rules of Professional Conduct in the 1980’s. (Sadly, a few months before his death, he was subject to the humiliation of seeing his work and the work of the other members of the Rules Revision Commission rejected by the California Supreme Court.)  The lawyers that specialize in the law of legal ethics, a specialty that emerged after the Watergate scandal and has reached the point where it can sustain its own specialty bar associations, such as the Association of Professional Responsibility Lawyers.   You might also regard the professional discipline prosecutors who began to appear at the start of the Golden Age of Legal Ethics, personified in their own organization, the National Organization of Bar Counsel, as part of this arm.

As with many of specialties and sub-specialites that have emerged in the Golden Age of Lawyering, the Legal Ethics Infrastructure, with its own specialists, own organizations, own meetings, and own publications has developed its own culture, its own history and its own heroes.   Father Drinan, Charles Kettlewell, Jeanne Gray,  Michael Franck are just some of the names, familiar to us in the Legal Ethics Infrastucture, far too obscure to the wider world of law practice, and wider, wider world beyond the law. Our position has always been inside the profession but at the same time outside of it;  in our work applying the law of ethics we can’t help passing judgment on our fellow lawyers, sometimes literally.  That sense of belonging but not belonging has helped to create a group identity that many of us feel comfortable with.  “This ethics stuff just gets in your blood,” one of my mentors at the State Bar told me early  in my ethics career “it makes you crazy but it’s like a car crash you can’t stop watching!”

The Golden Age by Louis Cranach The Elder

The Golden Age by Louis Cranach The Elder

Lawyers like Monroe Feedman, Paul Vapnek and many of the rest helped create that culture.  As the Golden Age of Lawyering moves on to …. something else, will the Golden Age of Legal Ethics pass on into a some new phase as well?  If so, let’s hope that someone remembers that there were giants in those days.