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.

A Dark Day for the State Bar of California

Rumors of Senator Joseph Dunn’s firing as Executive Director of the State Bar of California were confirmed yesterday with release of a terse announcement from the Board of Trustees.  As shocking as that announcement was, even more shocking was the news that Senator Dunn had filed a complaint against the State Bar and State Bar President Craig Holden (sen.-joseph-dunn-v.-cal.-state-bar—complaint)  alleging wrongful termination based on his status as a “whistleblower” on alleged misconduct committed by Chief Trial Counsel Jayne Kim.

Senator Joseph Dunn

Senator Joseph Dunn

Deputy Trial Counsel Jayne Kim

Chief Trial Counsel Jayne Kim

 

 

 

 

 

 

 

 

 

 

 

The State Bar has lurched from crisis to crisis over the last thirty years.  Some of the “highlights”:   The Chronicle news stories (1985), the implementation of the massive reforms led by Sen. Presley and designed by Prof. Fellmeth (1987-1991), the early conflict between the new full time State Bar Court and the Office of Chief Trial Counsel (OCTC) (1989-1995), the restructuring of those reforms by the Alarcon Commission (1994), the plebiscite over the State Bar’s very existence (1996), the resignation of executive director Rosenthal over conflict with the Legislature (1997), the veto of State Bar dues bill by Gov. Wilson and subsequent shutdown of the discipline system (1997-1998), the rebuilding of the discipline system (1999-2001), the introduction of appointments by the political branches to State Bar Court (2000-2001), mismanagement of OCTC during the Scott Drexel era and the growth of the backlog (2005-2009), the discovery of serious embezzlement by a State Bar employee (2009), the highly critical State Auditor’s report (2010), the “governance” struggle precipitated by SB 163 (2010-2012), the purge of OCTC management by Senator Dunn (2011), the backlog reduction project (2011), the Supreme Court’s rejection of stipulated decisions in the wake of the backlog reduction (2012) and the State Bar’s inability to implement a modern information technology system in OCTC (2014).

But this may well be the worst crisis ever for this troubled institution.  How can the public, the profession, the Legislature, and the Supreme Court, who relies on the State Bar as its “administrative arm” for discipline and admissions maintain any confidence in the State Bar after reading the allegations of Dunn’s complaint, whatever the truth ultimately turns out to be?  What new revelations will bubble up in the course of this litigation?

Yesterday was a dark day for the State Bar, maybe the darkest in its dark history.  But darker days may well be ahead.

Attorney Regulation, The Next Generation

San Francisco Lawyers Celebrate the New Integrated Bar 1927

San Francisco Lawyers Celebrate the New Integrated Bar 1927

Outside the Board of Trustees meeting room at the San Francisco HQ of the State Bar of California hangs the photograph above.  It captures a the last great pivotal moment in lawyer regulation, the transfer the vast bulk of legal services regulation from the judiciary to the lawyers through the institution of the integrated bar. Note that I say legal services regulation, not lawyer regulation, and I do so for a very good reason:  in 1927 only lawyers could provide legal services.  Most of the legal services regulation not conducted by governmental entities other than the State Bar was suppression of non-lawyer providers, “regulating” them out of existence through statutes criminalizing the unauthorized practice of law. Continue reading

Chasing the Public Protection Chimera

It is axiomatic that the purpose of attorney discipline is public protection. But what does that really mean? Two recent cases from the Review Dept., one published (Smithwick) one unpublished (Missud) illuminate the certainties and the uncertainties of chasing the public protection chimera.

Flipping the truism around, we start with the ridiculous before moving to the sublime.

Missud: Trudging Through the Muck
State Bar sign

The first principle, Public Protection, written in stone. It gets less certain from this point on.

Mr. Missud was admitted to the State Bar in 2002.  He will almost certainly be departing in 2015.  The Review Dept.’s decision recommends his disbarment for “egregious misconduct during his disciplinary proceeding and in connection with several frivolous lawsuits he filed from 2005 through 2011.”  The frivolous lawsuits stemmed from Mr. Missud purchase of a home in Nevada and his subsequent dispute with the builder of the home.  He was found in contempt in Nevada state court and declared a vexatious litigant in Federal Court.

Representing himself in State Bar Court, Mr. Missud litigated his own discipline case in his unique style, in my 25 years of paying close attention to discipline, perhaps the most unique, although very much in the mould of cases like Lebbos v. State Bar, or In the Matter of Dixon (Review Dept. 1999) 4 Cal, State Bar Ct. Rptr. 23 (1999 WL 562767).  The famous quote from Lebbos sets the tone:

Petitioner’s pattern of serious, recurrent misconduct is a factor in aggravation… Further, unrestrained personal abuse and disruptive behavior characterized petitioner’s conduct during the State Bar proceedings. Failure to cooperate with the State Bar during disciplinary proceedings itself may support severe discipline. It is evident that petitioner has no appreciation that her method of practicing law is totally at odds with the professional standards of this state. Disbarment is thus necessary to protect the public, preserve confidence in the profession, and maintain high professional standards.

Accordingly, we need not examine the fine points of whether counsel has the right to refer to a judge as “swine” and “asshole” when speaking to court personnel in the course of their duties…*

Continue reading

A Dying Echo from the AB 1515 Fiasco

The Board of Trustees of the State Bar of California approved a proposal at its September 13 meeting from Trustee David Torres to provide for two members of the Board to serve as “liaisons with the Chief Executive Officer, the State Bar’s  legislative advocate, and State Bar Governmental Affairs staff during the course of any  year of a legislative session regarding the development of legislative proposals that may lead to requests for an affirmative vote by the Board of Trustees to sponsor specific legislation.”  The purpose of these Board liaisons would be to

…help in determining when the development of a legislative proposal has reached a point of sufficient specificity, for presentation to the full Board for its consideration of State Bar sponsorship. Under this proposal, legislative requests for State Bar sponsorship would be brought to the Board as early as possible, to facilitate full Board discussion and public comment.

The Board clearly did not appreciate its approval being requested “nunc pro tunc” on AB 1515 after it had already passed the Assembly Judiciary Committee.  Coupled with the overall tone of the Board meeting (more than one Trustee echoed the thrust of new President Craig Holden’s inaugural address, to paraphrase, that public protection means more than just being an attorney punishment machine) it looks like there is some pushback among the attorney members of the Board against the public protection regime as currently administered by Senator Dunn and the public members of the Board.  The AB 1515 fiasco was a glaringly apparently symptom of the confusion over who really runs the State Bar.  Good to see Board Members trying to take the reins.