For California ethics lawyers, Christmas came early this year. Three decisions by the California Supreme Court on State Bar issues in one month: (In Re Garcia on Admission, January 2, In Re Grant on Discipline, January 23 and In Re Glass, January 27.) Since 1991, the Supreme Court’s output in this area has been more like three decisions a decade.
Of course, its more a statistical fluke than a bellweather of the Supreme Court’s increasing activism. Two of these decisions (the discipline decision in Grant, the admissions decision in Glass) result from the State Bar’s petitions for review of State Bar Court decisions, and the third (Garcia) results from a request from the Committee of Bar Examiners flagging the issue of Garcia’s lack of citizenship. The Supreme Court has been much more involved in State Bar issues in the last few years, as shown by their unprecedented mass rejection of resignations in 2010, and unprecedented mass rejection of stipulated discipline recommendations in 2012. But these cases aren’t the product this new involvement. True, the high court didn’t have to take up Glass or Grant, but it did consistent with its prior practice of correcting the Review Department when it perceives error. Their fates were essentially sealed when the Supreme Court accepted review; the Supreme Court doesn’t accept review to affirm State Bar Court cases decisions but only to overrule them.
Garcia, though, is a true outlier, a case that almost certainly had to accept. They couldn’t just accept the Committee of Bar Examiners finding that Garcia demonstrated good moral character and admit him contrary to Federal law (although Garcia’s lawyers argued that they could) without violating Federal immigration law. And they couldn’t just reject that recommendation and not admit Garcia without doing a grave injustice to Garcia and others in his situation. Reaching the just result required an interesting pas a deux with the Legislative Branch, which was happy to work at lightning speed to change the law preventing Mr. Garcia from being a lawyer.
Nativists, of course, will complain. Immigration is the hottest of political issues right now, in part because of the growing power of Latino voters, and extending benefits to “dreamers” is controversial. The political context can’t be denied even by those of us who (like me) think the result is just.
Glass presents its own political overtones, albeit more subdued. Mr. Glass embarked on his career as a fabulist writing for liberal magazines while pretending to be a journalist. He has been in the public eye ever since, his rise and fall exhaustively chronicled in fact and fiction (“Shattered Glass”.) Because his sins involved journalism, his attempt to become a California lawyer was bound the subject of much attention, much more than the last applicant to be struck with the Supreme Court’s lightning bolt, Mr. Gossage, who only had the brutal scissor murder of his sister and some traffic tickets to attract attention. The image of Mr. Glass as a yuppie narcissist become firmly rooted in the public perception and it permeates the decision as well, supported by, among many other things, Mr. Glass’s own testimony that he began fabricating stories after he was criticized by his parents.
Two high-profile admissions cases with opinions issued just weeks apart pointing in opposite directions should normally attract attention but shouldn’t cause us to freight them with undeserved significance. The question of whether they are inconsistent will naturally be raised because of the results. But they are such different animals that you might well ask if an apple is inconsistent with an orange.
Glass is firmly in the mainstream of recent Supreme Court case law on admissions and applies the familiar “sustained period of exemplary conduct” standard. Given the prolonged nature of his misconduct and its nature, “sustained” here means a really long time and “exemplary” means something approaching or exceeding sainthood. Mr. Glass was found wanting on both counts.
Garcia is unlike any other admissions decision, both procedurally and substantively. The Committee of Bar Examiners found that he possessed good moral character but that he could not be admitted because of Federal immigration law. The Supreme Court, exercising its plenary power, chose to address the issue and ordered briefing. No finding of bad moral character, no need to show a sustained period of exemplary conduct. The Supreme Court found that Mr. Garcia was not “spotless” but he wasn’t dealing with the mountain of deceit that Mr. Glass could not overcome.
Garcia is unlike any prior admissions case. And no future admissions case is likely to follow in its unique facts. Glass by comparison is a classic admissions case where well established standards apply. The real news from Glass is limited to the Supreme Court’s dismissal of his pro bono activities as having no weight in rehabilitation, based on the authority of Bus. & Prof. Code section 6073 which tells us that we “expected” to contribute pro bono legal services even if we are not required to. Pro bono work has previously been regarded as being mitigating evidence of good character in discipline proceedings (In the Matter of Maloney & Virsik (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 774, 2005 WL 103063.) Did the Supreme Court really mean to change the law in this area just to poke Mr. Glass with yet another stick?
As dark as Glass is, things get even darker when we turn to Grant. Predictably, the California Supreme Court held that possession of child pornography as proscribed by Penal Code section 311, is a crime of moral turpitude per se and disbarred Mr. Grant. Since the crime’s status as a wobbler was changed in 2006 (despite some peculiar language in the statute that seems to contemplate incarceration in the county jail) every conviction of violating section 311 is a felony and now will be subject to summary disbarment under Bus. & Code section 6102 without a hearing, without any chance to demonstrate mitigating circumstances such as rehabilitation. Some extremely cold comfort is served up by the Supreme Court’s discussion of potential remedies for harsh applications of statute: you can always apply for reinstatement after five years and show your rehabilitation then (footnote 4.)
Glass and Grant are to some degree companion cases. Both frame their inevitable conclusions with the necessity to preserve public confidence in the legal profession. Both cases are intent on drawing bright lines. Both decisions are laden with barely suppressed disdain for their subjects. You get the impression that the Supreme Court views admissions and discipline as a form of waste disposal. So the chance to do the right thing in the Garcia case must feel very good to them.