2020: the Bottom Ten

Many years ago, Los Angeles Times sportswriter Steve Harvey originated “The Bottom Ten” a weekly column humorously documenting the worst in college football. The Bottom Ten mantle that has since been assumed by ESPN.com and Ryan McGee but the Rankman continues to inspire even as college football, like so many things, went off the rails in 2020. Things going off the rails is nothing new in our world, indeed it is “situation normal, etc.” Was 2020 worse than any other year? You be the judge as you peruse Kafkaeq’s 2020 Bottom Ten.

  1. The Discipline System Embraces Punishment.

The State Bar of California continued to implement Business and Professions Code section 6068.13, a 1994 statute that authorized the California Supreme Court to impose monetary sanctions in attorney discipline orders. The statute and the implementing rules enacted by the State Bar Board of Trustees do violence to the bedrock principle that the purpose of discipline is not punishment, but public protection, not only in principle but in practice as the sanctions issue will slow down the work of the State Bar Court, lead to more trials and fewer settlements. For more directly from my spleen see State Bar Gets Into Punishment Business

2. Tom Girardi.

This one is a little personal as Mr. Girardi was my medical malpractice instructor at Loyola. Long before the bright lights of celebrity in the wider world blinded him, he was already a legal superstar, in 1983 a fat guy in a poorly fitting suit, folksy and enormously entertaining, not a trace of Beverly Hills glitz. I don’t know what happened between 1983 and 2020. The plot sounds like something from film noir: was it the money, was it the dame or was it both? No matter, watching the downfall of a once-great lawyer is painful.

3. The President’s Lawyers.

I don’t think I need to elaborate. This could easily be the whole list. I won’t, except for this: one question is whether the ingrained reluctance of attorney regulators to get involved in “political” matters will bend or break now that litigation is the vehicle for advocating crackpot ideas.

4. Washington State Kills LLLT.

Not Washington State University, football’s favorite son of the Palouse, but the Washington Supreme Court. The wet northwest was a pioneer in the concept of creating a new class of legal professionals, Limited License Legal Technicians. Opponents claim it was a natural death, but all the evidence points to murder. Just as other states are pioneering measures to fill the justice gap, including California’s renewed interest in the LLLT concept, Washington takes a step back.

5. A Great Leap Forward (Into the Abyss?)

Utah and Arizona pioneer non-attorney ownership of law firms. This one is a Rorschach test. Depending on your point of view, it might be the key to plugging the justice gap or the death of the legal profession. I feel strongly about it both ways. The Guild cannot survive the social and economic forces behind these changes. Yet the proponents have greatly oversold the likelihood that enabling non-lawyers to own legal service providers will significantly lower the costs of delivering justice. The most likely result is that non-lawyer investors will make a lot of money in lucrative practice areas like personal injury mass torts and practice areas like martial dissolution will continue to suffer huge numbers of unrepresented poor litigants.

6. State Bar Goes Chapter 6

State Bar of California issues 3,000 chapter 6 notices to participants in the October 2020 online bar examination. Chapter 6 is the part of the California Admissions Rules that deal with bar examination misconduct. The State Bar issued about 3,000 of these notices (more than one-third of the applicants) regarding the October 2020 on-line bar examination. Violations included “looking away from the screen”. Panic ensued among a group of people already highly stressed about gaining admission to the bar and some hope of paying their student loans someday. A pending chapter 6 matter means they can’t register for the February 6 exam. To be fair, online bar examinations face a huge proctoring challenge and similar events have happened in other states but couldn’t this have been handled in a more sensitive way? (And a thank you to Lyle Moran and his colleagues at the ABA Journal for more great reporting.)

7. Pride Comes Before a Fall

Disciplinary counsel resigns after tweeting that he is “proud anti-Muslim bigot.” Again, from the ABA Journal: “Disciplinary counsel Jerry Morgan of the Tennessee Board of Professional Responsibility resigned after the state’s Administrative Office of the Courts investigated his social media posts, the Tennessean reports.” “Lawyer does bad thing” stories are a dime-a-dozen and I have mostly tried to stay away from them. But this one makes the list because Mr. Morgan was employed prosecuting lawyers for violating the ethics rules. One expects more from those ostensibly upholding our professional norms. Maybe that is a mistake.

8. Disco Revival

This a true story. No names are stated to protect the innocent and the guilty. In 1978, a lawyer is convicted of a felony crime involving moral turpitude. The lawyer is placed on interim suspension (Bus. & Prof. Code section 6102(a)) and, because summary disbarment is unavailable under the statute as it existed in 1978, ultimately stipulates to three-year actual suspension, retroactive to date of interim suspension.

Forty years and a spotless career later, the lawyer submits his fingerprints to the State Bar, as required by Cal. Rule Ct. 9.9.5. The Office of Chief Trial Counsel (OCTC) cross-checks the fingerprints against Dept. of Justice records and finds the criminal conviction. But OCTC’s Odyssey case management system can’t access the older records, even though the 1978 conviction appears on the lawyer’s membership records page.

In its zeal to impose discpline, no matter how old the misconduct, OCTC somehow manages the acquire a certified (and largely illegible) copy of the record of conviction and files that in 2020, initiating a second criminal conviction proceeding, leading to an order for interim suspension. The lawyer attempts to telephone the OCTC lawyer assigned to the case without response. Finally, desperate lawyer hires high-priced discipline defense counsel who resolves the matter within one day.

Perhaps this is trivial but it perfectly the illustrates the mechanical way the discipline system operates, moving forward like juggernaut, crushing lawyers beneath its wheels, without much thought.

9. Law Firms Bank Paycheck Protection Money

Rahn Emmanuel famously said never let a crisis go to waste. Many people, including more than a few lawyers, applied this principal to the current pandemic. “Why shouldn’t I, everyone else is doing it?” one of them said to me.

10. Life During Wartime

Hovering above everything, the pandemic. Lawyers, like Horatius, are at the bridge; when bad things happen, are among the first to know.

Unlike Horatius, our responses are not always positive. Our legal system is designed for conflict and increased conflict means more work for lawyers. This macabre aspect does not endear us to other people, however much we try to compensate with good works. I don’t know if it is just that I am watching more television but it sure seems like I am seeing many more lawyer and pseudo-lawyer ads, including many telling us that justice is a commodity that can be obtained if you pick up the telephone NOW! My favorite is the phony “boiler room” with lots of actors pretending to answer the calls that are just pouring in.

The necessity of social distancing has already had a dramatic impact on the profession; see item 6 above, and the recent ABA ethics opinion on lawyers working remotely that many (including me) hope will push us toward some type of national licensing to replace the obsolete patchwork approach to licensing based on geography. We can’t know all the ways the pandemic will permanently alter our profession but it is already accelerating the ongoing commodification of the law business and will undoubtedly accelerate the application of technology. That is good news for some; bad news for others (see item 5, above.)

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