Three Notes in the Key of G

/ David Cameron Carr / Leave a comment

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.

Bankruptcy for a Lawyer, “Chapter 11” for the State Bar

/ David Cameron Carr / Leave a comment

A Lawyer and Partner, and Also Bankrupt – NYTimes.com. A sad but unfortunately emblematic story that captures where we at in the most human terms.  Members of my lawyer cohort like Mr.  Owens caught the big wave thirty years ago, a wave now breaking on the shore, depositing dazed surfers all over the rocks.  My law school classmates in 1983 thought that the only acceptable fate was finishing in the top 10% and going to work for a big firm with the expectation of making partner in seven years.  It seems so quaint now, as if we were talking about the hopes and expectations of the Lost Generation in 1920’s Paris.   For them, the world moved on, and so it has with us. 

As I noted in a prior post (The Great Perpetual Motion Public Protection Machine), Prof. William Henderson gave a presentation to the State Bar Board of Trustees that outlined some of the ways the world has moved on and some of the ways businesses that provide legal services have moved on.  Afterwards, in a colloquy with Staff, I expressed the view that our ethics rules were obsolete with respect to these new business models.  Staff replied with a reference to the Ten Commandments.  I didn’t quite understand it at the time but later I figured he had meant that the ethics rules are like moral rules, eternal principles that don’t change with the economic winds.  I wondered then just how much of the import of Prof. Henderson’s presentation really penetrated.

Or perhaps they understand all too well and see themselves standing against the barbarians at the gates.  It’s a romantic notion that I have seen in discipline staff, including myself.  On a practical level, the State Bar understands that the coming decade will see an actual contraction in the number of lawyers and they are already calculating how that will effect their future revenues.  But I don’t think we know how big that contraction will be. Ultimately, the State Bar will have to re-invent (or in bankruptcy terms, re-organize; see 11 USC section 1101, et seq.) itself as a regulator of legal service providers, traditional lawyers and non-traditional providers alike.  It is already exploring the idea of limited licenses and has recently been given authority to collect civil monetary penalties for the unauthorized practice of law now codified as Bus. & Prof Code section 6126.8.  As the lawyer discipline caseload shrinks, you can expect that the State Bar will be devoting more of its resources to filing civil UPL actions under section 6126.3 now that it can recover money through them.

The short term response will be professional retrenchment.  Government agencies typically aren’t nimble enough to get out in front of change, only react to it.  But surely some forward thinkers at the State Bar are looking at the long term need for a complete Chapter 11, and going where the rest of the English speaking world is headed?

What It Really Means to Be ‘Kafkaesque’ – Joe Fassler – The Atlantic

/ David Cameron Carr / Leave a comment

What It Really Means to Be ‘Kafkaesque’ – Joe Fassler – The Atlantic.

Kafka’s “A Message from the Emperior” informs writer Ben Marcus’s musing on the meaning of kafkaesque.   Most lawyers are also professional writers and understand Kafka’s yearning for true communication in a world filled with obstacles to it.  We have an instinctive understanding of the image of the labyrinth that the messenger has to overcome in the highly structured world of law practice.  And the best of us may continue to dream in the evening that the message arrives 

The Great Public Protection Perpetual Motion Machine

/ David Cameron Carr / 3 Comments

The Board of Trustees of the State Bar of California held it’s annual planning meeting in Newport Beach yesterday.  Although it was open meeting, only a few people outside the Board and staff were in attendance, folks like me who have some professional interest in the activities of this peculiar institution.

And the peculiarity of the institution was a big topic of the discussion.  We have already begun to see the impact the “governance” changes that have gone into effect over the last three years, the changes mandated  by the Legislature through SB 163.  Only the most obvious is the State Bar’s public protection mission is literally written in stone outside the State Bar’s new building in Los Angeles.  Public protection was everyone’s mantra at the planning meeting.

One public member of the BoT went so far as suggest that the State Bar was indifferent to public protection prior to SB 163, more concerned with its “trade association” function until the Legislature forced it to cure its slack ways.  Many of us involved in the discipline system over last few decades (25 years in my case) would find this assertion bizarre.  It’s clear that the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role, continues to exist, not to mention ill feeling from the raucous fight over governance a couple of years ago, apparent in other Trustee’s responses to this public member.

But its clear that everyone has gotten the message that public protection is the State Bar’s only mission, even if it has been virtually the only mission for most of the last thirty years.  It is politically incorrect now to suggest that the State Bar do something that might only benefit its members.  In discussion about one specific proposal, an attorney Trustee asked sheepishy whether it was permissible to consider the impact that the proposal might have on attorneys.  The members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.

Almost the only thing that remains is changing the name.  “The State Bar of California” still makes it sound as if this were a bar association, and even our guest presenter, the most astute Prof.  William Henderson of Indiana University, made the mistake of referring to as the State Bar Association.  But the many references to the local bar associations by both Board and Staff made it clear that the trade association function is theirs, and theirs alone.

Many positive changes have been made.  The vertical prosecution system, long advocated by close observers of the Office of Chief Trial Counsel has been implemented, to the credit of the Chief Trial Counsel. After years of IT plans and false promises, it may be that the ancient IT infrastructure of the State Bar has final been replaced.  Efficiency is the other watchword of the day and presentations by Staff furnished cause for optimism that the discipline machinery will spend its limited resources more efficiently in the future.

Another positive change was reflected in the explicit acknowledgement that the culture of State Bar has been dysfunctional.  Beyond that acknowledgement, however, there wasn’t much specific discussion about to change that.  Perhaps that’s because the essential ingredient in changing a dysfunctional organizational culture is inspired leadership, and the State Bar has not suffered from an excess of that.  When I was a manager in the Office of Chief Trial Counsel at the turn of the century, we hired a management consultant who went through a number of exercises with OCTC management identifying exactly what the specific management dysfunctions were.  That study is gathering dust on some shelf somewhere, along with innumerable other studies (the State Bar of California might be second most studied organization on earth, just behind the Soviet Union.)  Perhaps the State Bar’s Strategic Plan will provide continuity for change but the State Bar has some kind of Strategic Plan for many years.

Sharks have to keep moving in order to breathe.  Like the shark, the State Bar has to keep coming up with new ideas to protect the public in order to breathe politically.  Some of those ideas are actually good one;  others seem based on the notion that any measures that increases the onerousness of the discipline system and the harshness of the consequences of discipline, enhances public protection.  This is related to the idea that the State Bar has been lax in protecting the public because “the fox is guarding the henhouse”, the idea alluded to in the public Trustee’s comments.

Among some people, you can’t hang ’em too high.  When I was a young Deputy Trial Counsel, I telephoned a complainant to tell her the good news that the attorney she complained about had been disbarred. “Is that all you’re going to do to him?” she responded.  To me, there was a bit of that spirit in the weak bill of particulars contained in the legislative history of AB 2764, the legislation that brought the governance issue to the fore.

So we have thirty years of constant change to the discipline system and many if not all of those changes have removed procedural rights of an attorneys in the discipline system (e.g., 1997, removing the right of an attorney to challenge inactive status pending a disbarment recommendation and 2011, removing the right to discovery as provided in the Code of Civil Procedure) or increasing the harshness of discipline consequences (e.g. 1997, changes in the summary disbarment statute, see In re Lesansky; 2010, consumer alert badges on State Bar member web pages.)  Some of these proposals have been defeated, such as former Chief Trial Counsel Scott Drexel’s attempt to allow OCTC to opt out of prefiling settlement conferences (2008) and the recent attempt to post consumer alert badges on every respondent in a formal discipline proceeding.

T he consumer alert badge proposal was defeated because it would have given the State Bar the power to impose de facto discipline without proving its case in State Bar Court.  This would be highly efficient.  But there remain realms of the law where the correct result is as important as efficiency, as Prof. Henderson pointed out in his presentation.  He was referring specifically to criminal prosecution and defense, a realm that remains in his “Bespoke” category where the public interest still requires artisanal craftmanship. The discipline system remains in the category, although they always told us that we were building Chevys, not Cadillacs.

Specific proposals were discussed at the planning meeting in three areas (1) mandatory legal malpractice insurance and insurance disclosure requirements; (2) random client trust account audits;  and (3) requiring advanced fees to be placed in trust.

None of these proposals are new and so far they have been non-starters for a variety of reasons.  Each proposal deserves a blog post of its own but in summary

(1) mandatory legal malpractice insurance would benefit the public but would be very complicated and expensive to set up and maintain;

(2) random client trust account audits probably would have some in terrerom effect in discouraging misappropriation but will be labor intensive and raise privacy concerns (see Valley National Bank.) There is also some question whether OCTC has the statutory authority to do random audits;  as OCTC’s liasion with COPRAC in 2000 , I asserted that position and was met with some skepticism;

(3) the Supreme Court has rejected attempts to read Rule 4-100 as requiring unearned advanced fees to be placed in trust (Baranowski) and rejected the last attempt to amend 4-100 to explicitly require it.  

These proposals all merit reasonable discussion.  Almost certainly though, the Chief Trial Counsel will weigh in with her own ideas about enhancing public protection and I can hope that these will not ignore the interests of the members of the State Bar of California and place efficiency ahead of fairness.

Justice Served in the Garcia Case; Will the Kitchen Now Close?

/ David Cameron Carr / Leave a comment

As even folks outside the world of lawyers know, the California Supreme Court has issued an opinion recommending an undocumented immigrant (or illegal alien, if you agree with Justice Chin) for admission to the State Bar of California (In Re Garcia on Admission, case no. S202512, filed 1/2/14.) The decision discusses Federal immigration law potentially barring such admission (8 U.S.C.§1621) and recently enacted California law passed specifically in response to Mr. Garcia’s admission (Bus. & Prof. Code §6064(b).).

But it also discusses whether illegal status is itself a inherently disqualifying because it shows bad moral character. And that’s the part that aleady has nativists all riled up.

The status of undocumented immigrants/illegal aliens is the hottest of hot button issues right now. While a majority of Americans support some type of immigration reform is appropriate, a very vocal minority opposes any attempt to provide a path to citizenship for this group of people, clearly present in the United States in violation of Federal immigration law. Their principle argument is that to do so would reward people for breaking the law, people who have indulged in illegal, and in the eyes of some, immoral behavior. The temperature of the debate is apparent in Justice Chin’s concurring opinion where he spends considerable time addressing the proper nomenclature to be used in describing this group for reasons that don’t seem readily apparent from his opinion.

The legal issues surrounding Mr. Garcia’s admission involve convoluted statutes passed in the mid 1990’s that themselves reflect our country’s long polarized views on immigration. § 1621(a) generally imposes restrictions on the granting of any state or local benefit on aliens, with some exceptions, and §1621 (c)(1)(A) specifically defines those benefits to include professional licenses. But §1621(d) establishes its own exception, allowing a State to pass a statute authorizing the conferring of the benefit.

At that time of oral argument in the case on September 4, 2013, no such statute existed. Within a few weeks, the Legislature passed AB 1024, an amended “spot bill”, by overwhelming majorities, that created news Bus. & Prof. Code §6064(b), which authorized the granting of law license to an applicant not lawfully present in the United States, providing they otherwise qualify for admission. After the bill was enrolled on September 26, 2013, the California Supreme Court vacated its submission of the Garcia matter, requested supplemental briefing and took the matter under submission until January 1, 2014, the effective date of the new statute. The decision issued the next day.

The narrow legal issues involving the arcana of Federal immigration law solved, the Court then waded into the oven, addressing objections raised in one (and only one) of the many amicus briefs filed in the Garcia matters, filed by a former State Bar discipline prosecutor. The objections mirrored those raised by the vocal minority that opposes any immigration reform: how can a person whose very presence in this country is a violation of law, and who may not even legally work in this country, take an oath to uphold the law as required by Bus. & Prof. Code §6077?

In response, the Supreme Court examined one of its most colorful precedents, Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447. This admission case involved the young Terence Hallinan, future District Attorney of San Francesco, son of left wing labor lawyer Vincent Hallinan, whose pugnacious nature had earned him the nickname “KO Hallinan”. In that case, the Court had concluded that’s Mr. Hallinan’s habit of getting into fistfights, some leading to criminal convictions, did not mean that “KO” lacked good moral character. Our 2014 Supreme Court concluded that “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar” explaining that “while an undocumented immigrant’s (sic) presence in this country is unlawful and can result in a variety of civil sanctions under federal immigration law…it does not constitute a criminal offense.”

The former Bar prosecutor’s related argument, one echoed by the United States Department of Justice, was that it would be improper to license a lawyer who would not be able to work in the United States. The Supreme Court pointed out that there are other uses for a law license but for making money. And a rather more specious argument he advanced, that Mr. Garcia might suddenly be removed from the jurisdiction by immigration authorities, leaving clients unprotected, was dealt with by the observation that any attorney might suddenly be removed from the jurisdiction by that ultimate authority, the Grim Reaper.

The specific evidence regarding Mr. Garcia’s moral character was very positive but not spotless. He admitted that he misrepresented his status when applying for a job at age 17, information that was not initially supplied to the Committee of Bar Examiners, apparently based on poor advice from his counsel. But these spots did not dissuade the Supreme Court from finding that he had met his burden of establishing good moral character (Bus. & Prof. Code §6060.)

It is certain that the Garcia decision will inspire a lot of comment, and most of it will possess heat, if precious little light. What is perhaps most interesting from my little corner of the world, is the Supreme Court’s liberal language regarding moral turpitude and criminal convictions, language that seems inconsistent with the spirit of how admissions and discipline authorities have been operating the last few years, a sprit that I see animating the dissenting brief from the former State Bar prosecutor. Will the State Bar take something from Garcia beyond the immigration issues?  One can hope.

Cain, The Final Chapter: Chief Recommends No Further Action On Consumer Alert Proposal

/ David Cameron Carr / Leave a comment

The Chief Trial Counsel of the State Bar of California has recommended that the Regulation, Admissions and Discipline Oversight Committee (RADO) take no further action on her proposal to expand the use of the “Consumer Alert” badge on the State Bar website member pages, a proposal that has been discussed extensively here (here, here, here.)  This might be regarded as a rare victory for discipline defense counsel, who submitted the only public comment on the revised Chief Trial Counsel’s proposal.  But more accurately, it represents an acknowledgment that the original proposal was a massive overreach on the part of the discipline prosecutor.

But a curious passage at page 3 of the Chief’s memo, including a footnote, relates to an another issue, noted the defense bar response to the Consumer Alerts proposal, whether there is an increasing trend toward exoneration in State Bar Court.

As of September 2013, the percentage of filed cases that resulted in dismissal this year was 1%. In other words, 99% of the Hearing Department decisions and orders filed this year have resulted in culpability or other favorable findings for OCTC.  OCTC notes that this calculation does not take into account the last quarter of 2013, so the percentage may change by year’s end.

To avoid concerns of self-reporting, OCTC asked the State Bar Court to provide data regarding court dismissal of cases. According to that data, from January 1 through September 24, 2013, there were eight (8) dismissals out of 821 filed Hearing Department decisions and orders (266 decisions and 555 other dispositions).

99% sounds very impressive until we note that its based not only on Hearing Department decision but 555 other orders, all characterized as “dispositions.”   What exactly does that 555 include?  It sounds as if it includes decisions on motions, including motions to dismiss.  Did these motions entirely dispose of the case or were they just partial dismissals? No further information is supplied.  And no information is supplied as to the historical trend.

And why must “concerns with self reporting”  be avoided.   This cryptic reference suggests that RADO has not been entirely comfortable in the past with the statistical world as painted by the Office of Chief Trial Counsel.  While its a given that misleading with statistics is a necessary leadership skill in this modern world, this passage in its entirely suggest that concerns about raw numbers from OCTC are not misplaced.   Why play number games to get to 99% unless there is something you want to conceal?  This hardly seems consistent with the transparency that is part of the rationale for the Consumer Alerts badge.