State Bar Court Precedent: Rumors of Demise Greatly Exaggerated

/ David Cameron Carr / Leave a comment

Billy Joel sang that “only the good die young”, a sentiment some say Joel has been proving for decades.   Not too long ago, it looked like we were witnessing yet another premature death:  published Review Department decisions that count as precedent in State Bar Court.   Coming up on two years since the last published decision (In the Matter of Allen, published in November 2010)  44 Review Department opinions had issued with not one deemed worthy of publication.  This blog post was originally going to be titled “RIP Review Department Precedent: 1989-2010?”

On October 3, 2012, with the publication of In the Matter of Reiss,  rumors of this youngster’s demise proved to be greatly exaggerated.  The Review Department had found something that was worth giving the hearing judges, State Bar trial counsel, defense counsel and respondents, a topic worthy of setting in stone along the path.

On first reading, though, its not obvious what that guidance is.  Reiss’s disbarment recommendation seems straightforward given the culpability findings.  There is a helpful discussion in the footnote on page 20, that clarifies the circumstances under which a lack of prior discipline over many years of practice will have  no mitigating effect.    On the surface there is nothing especially groundbreaking here, legally or factually.

On deeper reflection, though, you realize that the fact that there is nothing groundbreaking here is exactly the point.    The opinion’s written analysis begins by reaffirming the traditional “case by case” examination of all relevant factors, beginning with the Standards for Attorney Sanctions for Professional Misconduct (let’s just call them the Standards, capital “S”), whose guidance will be followed “whenever possible” (page 22).  But it made it clear that it doesn’t end there; at the end of rather short trip the Court tells us that they reached their opinion “After carefully considering all relevant factors, the aggravation, the mitigation, and the guiding case law.” (Page 23.)

The one legal issue that they really addressed is contained in just a footnote on page 20.  Significantly, it is an issue where case law is at odds with the Standards.  Standard 1.2(e)(i) only provides that no prior discipline is mitigating if the conduct is “not deemed serious”, while Supreme Court case law has given attorneys mitigation on this ground in cases that are certainly serious, like misappropriation of client funds.  The Review Department might have decided to go with the Standard on this issue, perhaps believing the idea that the Supreme Court’s action in sending 42 cases back to the State Bar was message that not to rely on “pre-Silverton case law.”    Instead, the Court’s analysis found the common thread among that “pre-Silverton” case law and articulated a helpful rule of law (no mitigation for lack of discipline if conduct prolonged) that doesn’t slavishly follow the Standard, the Standard that is not true to the Supreme Court case law.

The message of Reiss is that precedent still counts in the discipline system.   And maybe more importantly that the Review Department will exercise its power to make precedent to guide the disciplinary process where it deems appropriate.  The Court did the same thing four years ago with its decision four years ago in In the Matter of Van Sickle (Review Dept. 2006) 4 State Bar Ct. Rptr.  980, 2006 WL 2465633 , at the height of the first Silverton-mania.  The Supreme Court  denied the Office of Chief Trial Counsel’s petition for review of that decision, which set out in depth why the Standards can’t be taken at face value.

Reiss is a disbarment recommendation, so an appeal by the discipline prosecutors seems unlikely, but these days, who knows?  The Supreme Court, of course, could take the case up on their own motion if they really want to re-visit the issue of how we come to disciplinary recommendations.   Or they can simply order Reiss depublished and leave us all completely confused.   Will OCTC ask the Supreme Court to depublish Reiss?  We will see.

Unfair, Yet Ineffective: the State Bar Cost Recovery Structure

/ David Cameron Carr / Leave a comment

One of the most unfair aspects of the California discipline system is the current cost recovery structure.  Not that the idea that attorneys subject to discipline should pay the costs of the proceeding is  unfair.  In practice, however, it distorts  the  discipline system by giving the discipline prosecutor undue leverage and an incentive to overcharge.

Bus. & Prof . Code section 6086.10, passed as part of the major overhaul of discipline in 1980’s, provides that the Supreme Court can order a disciplined attorney to pay:

The charges determined by the State Bar to be “reasonable costs” of investigation, hearing, and review. These amounts shall serve to defray the costs, other than fees for the services of attorneys or experts, of the State Bar in the preparation or hearing of disciplinary proceedings.

As implemented by the State Bar of California, costs are assessed as a flat fee that increases with successive stages of the discipline process, plus a fixed charge for every additional investigation matter included in the prosecution (current cost schedule here).  For instance, a matter that settles prior to the filing of disciplinary charges costs $2,865;  a single matter that goes to appeal in the Review Department of State Bar Court will cost $19,156.  These costs are fixed regardless of how many hours actually went into the prosecution, or the work of the State Bar Court;  they represent what is supposed to be an average cost for a discipline prosecution through that particular stage.

Part of the reason for this cost structure is to relieve the State Bar of the onerous burden of actually keeping track of how much work it does.  (Lawyers who have work diligently at keeping time records as required by rule 4-100(b)(3) may find this ironic.)  Failure to maintain such information was also a key criticism of the 2009 State Auditor’s report on the State Bar.   The auditors noted that the failure to maintain this information made it impossible to measure the efficiency of the discipline system.   Instead the State Bar computes what is maintains is the “average” cost of maintaining a discipline proceeding at each successive stage, e.g.:

Original Proceedings (Stage at which the matter settles) – eff. 1/1/2012 Cost Assessment
Matters that go in Default $4,159
Matters that Settle Prior to Filing of a Notice of Disciplinary Charges $2,865
Matters that Settle during first 120 days of proceeding $3,349
Matters that Settle before Pretrial Statement is filed $5,308
Matters that Settle before trial but after Pretrial Statement is filed $6,944
Matters that proceed to a One-day trial $6,944
Matters that proceed to a Multi-day trial $15,660
Matters that proceed to the Review Department $19,156
Conviction Referrals (Stage at which the matter settles) – eff. 5/11/2012 Cost Assessment

Each investigation matter beyond the first one also results in an assessment of $914.  Beyond this rough adjustment, there is no adjustment for the amount of work actually done.   A single matter that takes ten hours is assessed the same amount as one that takes 100, as long as it fall within the same range.  The “formulaic” approach to assessing costs was reaffirmed by action of the Board of Trustees in January 2011 approving changes, including an annual upward adjustment for increasing costs, as recommended by the State Auditor.   The unfairness of this approach was underscored in the Board’s agenda materials, which noted with apparent relief that “[h]istorically, the use of this formulaic approach has not received any significant challenge.”

Respondents in discipline proceedings can recover their costs as well, but only out of  pocket costs.  They must be completely exonerated of all charges to recover those.   The State Bar can bring multiple counts and force the Respondent to spend the resources to defend all of them, perhaps forcing a multi-day trial;  if they prevail on one, the Respondent pays the State Bar the same formula amount, currently $15,660, in addition to any attorney’s fees paid to Respondent’s counsel.  Even if Respondent represents his or her self, the cost of contesting the State Bar is large.  This creates a large incentive to settle the matter on the State Bar’s terms, even if the case is weak.  Exonerations do occur in State Bar Court; they are not common, but they would be more common if the cost recovery structure were not so inequitable.

The current structure creates a powerful incentive to overcharge cases to gain leverage, to create “bargaining chips” that can be traded away to achieve the disposition the State Bar wants without putting its case to the test.   That inefficiency is paid for by the Respondent.  Even if overcharging is the result of poor investigation and inadequate analysis, the current structure creates no incentive to fix those problems.  Unfortunately, footnote 4 of the Silverton decision (discussed in a previous post) chastising the State Bar for not bringing every possible charge against Silverton also encouraged needless and duplicative overcharging, even as it warned against it.

Reform of the discipline system to award costs and attorneys fees to the prevailing party at trial, removing the unfair “winner take all” formula, and basing the award on the relative success of the State Bar prosecutors in proving the charges that they bring would go a long way toward decreasing overcharging and removing the undue leverage that distorts the discipline system.

But what would such a system do to the amount of costs recovered by the State Bar?  Little or nothing; the current system is not very good at recovering costs, despite its unfairness.  As noted by State Auditor (at page 41):

…the State Bar’s recovery of its discipline costs remains relatively low. The State Bar has only been able to recover $550,000 in 2007 and $766,000 in 2008, with the vast majority of these amounts representing collections from various earlier billing years, but it has billed about $1 million in each of these years.

The State Auditor blames “statutory limitations and other factors” but everyone with much experience with the discipline systems knows that the “other factor” is the fact that, by and large, disciplined lawyers just don’t have the money and probably will never have the money.   Even if the amount of money that the State Bar could collect is increased, that fact won’t change in a bad economy and a marked decline in the demand for lawyers.   Expecting disciplined attorneys to pay much more in costs than they do now is chasing smoke.  But such are the myths that the discipline system lives by.

Look to ABA for Discipline Standards Reform

/ David Cameron Carr / Leave a comment

The strange tango between the State Bar of California and the California Supreme Court involving the return of 24 discipline cases to the Bar has focused some attention on one of more problematical areas of discipline law, the Standards for Attorney Sanctions for Professional Misconduct.   These written guidelines, currently lodged in Title IV of the Rules of Procedure of the State Bar, were formulated and approved by the State Bar Board of Governors in  the mid-1980s.  State Bar Executive Director Joseph Dunn is quoted as telling the current Board of Trustees last week that that it may be time to review those standards.

The Standards got off to an uneven start.  Originally, their purpose was to the achieve some consistency in the decision making  of  the voluntary “referees” the adjudicated discipline cases at the hearing stage prior to the birth of our current professional State Bar Court in 1989.  They were approved by the Board but apparently never formally approved by the California Supreme Court (although I was told otherwise by a former Chief Trial Counsel, who promised documentation that never materialized.)   It is not even clear that the Supreme Court was even consulted in their drafting, as incredible as that seems in today’s discipline world.   The Supreme Court didn’t waste much in time proclaiming the Standards as “mere guidelines” that did not bind them (Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550.)  A subsequent decision described a particular Standard, Standard 2.2(a) regarding misappropriation as  “not faithful to the teachings of this court’s decisions. ” (Edwards v. State Bar (1990) 52 Cal.3d 28, 38.)  While the Court did embrace the Standards as the beginning of the analysis of the appropriate discipline, not the end, it found the Standards singularly unhelpful in In Re Brown (1995) 12 Cal.4th 205, 220.  Brown is one of the cases cited in the State Bar’s motion filed July 3 seeking to clawback another 24 discipline cases from the Supreme Court.  In the end, the Supreme Court looked to its own case law to determine the appropriate discipline for a tax related criminal conviction.

The Supreme Court’s criticism of the Standards in Brown was heeded.  In late 1990s, a senior attorney in the Office of Chief Trial Counsel worked on re-writing the Standards to provide more specific guidance.  No one was happy with the first draft.
The project was abandoned even before the State Bar was shutdown on 1998 after Governor Wilson’s veto of the State Bar dues bill.

After the shutdown and subsequent resurrection of the discipline system after the Supreme Court ordered special assessment, the priority was resolving the large number of cases that had accumulated during the hiatus.   Settling cases was viewed as a way to keep the cost of the discipline system down, an important consideration because of the inability of the State Bar to raise dues and increasing labor costs;  in the June 2005 California Bar Journal, State Bar of California President John Van De Camp lauded retiring Chief Trial Counsel Mike Nisperos 41% increase in stipulated decisions while boasting ” bar money is being spent carefully.”  President Van De Camp also predicted that the tenure of incoming Chief Trial Counsel would see “continuing improvements in the discipline system.”

Three weeks later, the Supreme Court issued its decision in In Re Silverton (2005) 36 Cal. 4th 81, the other decision cited in the State Bar’s “clawback” motion .   Silverton was misread by the Office of Chief Trial Counsel (OCTC) as endorsement of the Standards as binding guidelines.

The odyssey of the Van Sickle matter shows that Supreme Court intended no such message (In the Matter of Van  Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. ___, 2006 WL 2465633.)  Mr. Van Sickle was found culpable of violating Cal. Rule Prof. Conduct 4-200, charging an unconscionable fee.  The hearing judge recommended six months actual suspension, consistent with the mandatory language of Standard 2.4, which says that a violation of this rule “shall result in at least a six-month actual suspension from the practice of law, irrespective of mitigating circumstances.”  He appealed to the Review Department, which reduced the recommended discipline to 30 days actual suspension, citing several mitigating circumstances.  OCTC petitioned the Supreme Court for review and it remanded the case back to the State Bar for reconsideration in light of Standard 1.7 and Silverton.   On remand, the Review Department explained in some detail why it wasn’t bound by the seemingly mandatory language of Standard 2.7.  It increased the recommended discipline to 3 months actual suspension, still less than the minimum prescribed in the Standard.  OCTC again petitioned the Supreme Court, arguing that the State Bar Court was bound by Silverton to follow the Standard.  The Supreme Court denied the petition, tacitly endorsing the Review Department’s analysis which firmly established that the Standards do not dictate the result, no matter what the seemingly mandatory language of the Standards may say.

Van Sickleillustrates two fundamental problems with the Standards.  The first one is mandatory language that belies the true nature of the Standards as guidelines, a legacy of the Standards original purpose of guiding a large number of volunteer adjudicators.  The second is a rigid categorical approach the purports to dictate the result based on the statute or rule violated, not on assessment of the misconduct itself.  The  Supreme Court has said that consistency is important but the quest for consistency is in unavoidable tension with the case by case approach adopted in Supreme Court precedent (“As the final and independent arbiter of attorney discipline, we are permitted to temper the letter of the law with considerations peculiar to the offense and the offender” Howard v. State Bar (1990) 51 Cal.3d 215, 221-22.)

Prosecutors, naturally, like rigid categories.  Not only do they promote consistency, but they are easy to apply.  They remove discretion from those dangerous people we call judges.  Following Silverton,   Chief Trial Counsel  Scott Drexel issued a memo to his prosecutors in June 2006 setting forth the office’s policy on application of the Standards.  The practical consequences of this memorandum are set forth in the 2009 State Auditor’s report on the State Bar:

….in 2005 the California Supreme Court criticized the State Bar for failing to bring all possible charges against an attorney who was ultimately disbarred, and for failing to follow its own sanction standards—internal guidelines that delineate the appropriate actions that the State Bar should take against attorneys who have repeatedly violated professional or legal standards. In response, the State Bar’s former chief trial counsel [Drexel] issued a memo directing staff to apply sanction standards consistently and to be willing to take more disciplinary cases to trial if warranted. The trend in the number of cases that ultimately went to trial in the State Bar Court each year has increased from 65 in 2004 to 127 in 2008, a 95 percent increase and is consistent with the change in policy. [page 19]…Additionally, the former chief trial counsel provided staff further clarification in August 2007 with the State Bar’s Statement of Policies, Objectives, Procedures and Practices Governing the Determination of Level of Discipline. Before this policy shift, according to the former chief trial counsel, the State Bar settled before trial about 90 percent of cases in which the accused attorney articipated. However, he recently estimated that this percentage has decreased to about 75 percent. He also stated that in the past, the State Bar was more willing to offer settlements at lesser discipline levels to resolve cases, and he attributes the recent decline in settlements to the State Bar’s unwillingness to agree to dispositions that are not consistent with the sanction standards. [page 29]

These policies created the growth in investigation backlog and “notice open” backlog (discipline cases where the investigation was complete and charges ready to file) that become the object of the Herculean effort to eradicate the backlogs last year.   Cases were taking months and years to resolve;  I had one investigation matter that took three years to resolve.

Clearly application of these flawed  Standards in a mechanical way, the approach one favored by the Office of Chief Trial Counsel, is impractical.  Revision of the Standards, something everyone has recognized as necessary for most to the last two decades, should be moved to the front burner.  Its a daunting project;  work began on the current proposed new Rules of Professional Conduct , California’s version of the Model Rules, began in 2001 and their ultimate approval in nowhere in sight.  We can’t spend ten years re-drafting the Standards.

Fortunately, there is another set of disciplinary standards that have been in use by state disciplinary authorities and the Federal Court for some time now;  the ABA Standards for Imposing Lawyer Sanctions.   Unlike the California Standards, they have the singular virtue of keying the appropriate sanction to the nature of the misconduct rather than the particular rule of statute violated.  This avoids the Van Sickle problem.  It also echos the California Supreme Court’s decision In re Morse (1995) 11 Cal.4th 184.  In Morse, the Supreme Court, flummoxed by the broad, vague language of the Standards (Morse, at 206),  it was in Brown, examined the case law and turned to two key questions:

…our determination of the appropriate discipline ultimately depends on the answers to two key questions. First, what did Morse do wrong? Second, what is the discipline most  likely to protect the public, the courts, and the profession, or stated conversely, to deter Morse from future wrongdoing?

Morse at 208-09.   The simple principle that it is the nature of misconduct, including the potential for future harm, that should determine the appropriate discipline.   This the approach that the ABA Standards take.

At the time, we in the Office of Chief Trial Counsel, regarded Morse as important guidance, more important the perfunctory statements about the Standards promoting consistency.  Consistency is important but less of an issue when decisions are made by a cadre of professional judges instead of a gaggle of several hundred volunteer referees (especially when assisted by a Supreme Court that consistently makes decisional law in the discipline context).   The hobgoblin of small minds that is the current Standards for Attorney Sanctions for Professional Misconduct has  made the work of discipline more complicated than it needs to be for everyone.   The ABA Standards, while not perfect, provide the starting point for drafting a set of California standards that can truly be helpful in reaching fair and timely sanctions.

State Bar Doubles Down On 24

/ David Cameron Carr / Leave a comment

Extraordinary enough when the California Supreme Court returns a discipline case to the State Bar of California for further consideration. Returning 24 cases at the same time qualifies as a Richter-scale event in the dank world of attorney discipline. That happened on June 21.

Just as the implications of that act were being fully absorbed, something even more extraordinary happened, something that seems downright strange. The Office of Chief Trial Counsel filed a motion on July 3 asking the California Supreme Court to return another 24 cases for further consideration.

Most everyone assumed that the Supreme Court’s action meant that it found the recommended discipline in the first set of e 24 cases to be too lenient, including the State Bar itself.   All of the cases were stipulated recommendations, reached during or shortly after the Chief Trial Counsel’s backlog reduction project.  But the Supreme Court’s order itself only asked that the recommendations be reviewed “in light of the applicable attorney discipline standards.”  This terse direction did not even specifically reference the written guidelines cited in the Brown and the Silverton cases mentioned in the order, the Standards for Attorney Sanctions for Professional Misconduct, found at Title IV of the Rules of Procedure of the State Bar.  A review of all 24 stipulations sent back by the Court disclosed many instances where the analysis of the recommended discipline did not address one or more apparently relevant Standards in any detail and sometimes not at all.   What had appeared to be some significant tarnish on the Chief Trial Counsel’s elimination of the both the investigation and prosecution backlog began to look less and less like the “firesale” that everyone promised that backlog reduction would not be.

Maybe this really wasn’t the end of the world as we know it.   After all, the Supreme Court has done something similar when it sent back 30 resignation matters in February 2010.  It could certainly be expected that they would be looking closely at the stipulated decisions coming from the State Bar Court during the pendency of the backlog reduction program and the length of time that it was taking the Court to evaluate recommendations must have been apparent to the discipline prosecutors.   So the Supreme Court’s action may not portend anything more than the necessity of tweaking the stipulation process so that the analysis using the Standards (among other “standards” including applicable case law) more precisely expresses the rationale for the result.   Maybe the boss wasn’t really chewing  them out for being a bunch of softies.

In normal times, cooler heads might have prevailed.   But there are no normal times at the State Bar of California.   On July 3, 2012, the Chief Trial Counsel, represented by its Office of General Counsel, filed a motion asking the Supreme Court to return a different set of 24 cases to the State Bar Court.  This motion, unsupported by any evidence, merely states that the Chief Trial Counsel has identified these case as possibly deviating from “the applicable standard” and asks that the Supreme Court return them to ensure consistency.  And little else.

The Supreme Court, as everyone acknowledges, has the ultimate say in discipline matters.  No one doubts that the Supreme Court can return a recommendation for further consideration and can even reject a discipline recommendation on its own motion. The Chief Trial Counsel stands in a different position. In each of the stipulated matters that it now wants to claw black from Mt. Olympus, the disposition had been bargained for and agreed to by the Office of Chief Trial Counsel and approved by a hearing judge of the State Bar Court as provided by the State Bar’s Rules of Procedure. In every case, the Respondent attorney made admissions of fact and agreed to conclusions of law that remain binding on them, and the State Bar as well. The risk that the stipulated recommendation would ultimately be rejected by the Court was known and was known to be small, at least until June 21. Now no Respondent in the discipline system can be completely sure that the discipline prosecutors will hold to the deal that they make.

There is no rule that authorizes the Chief Trial Counsel to file a motion asking the Supreme Court to return these cases. The California Rules of Court authorize the Chief Trial Counsel to seek review in individual discipline matters with a showing that grounds exist under Cal. Rule Ct. 9.16 such as:  review being necessary to settle important questions of law, that the State Bar Court has acted without or in excess of jurisdiction; that the decision is not supported by the weight of the evidence; or that the recommended discipline is not appropriate in light of the record as a whole. There is no discussion of any of these factors in the motion. The only authority cited is the Supreme Court’s own authority, not any authority conferred upon the Office of Chief Trial Counsel by rule or statute. And the only “evidence” is the Chief Trial Counsel’s own review of every discipline stipulation entered into in the last few months. Curiously, she is identified as the client being represented by the State Bar’s Office of General Counsel in this motion, not the State Bar itself, as is customary.

Why would the Chief Trial Counsel file this motion? An obvious reason would be to get out in front of an expected second wave of embarrassing returns from the Supreme Court. But there is a more ambitious agenda at work, as indicated by the most recent status report filed in anticipation of the Board of Trustees meeting:

The remand order appears to be a message to everyone in the discipline system (the State Bar Court, OCTC and Respondents/Respondent’s Counsel) that the Supreme Court expects more from the State Bar, greater adherence to the Standards, a more thoughtful analysis regarding the appropriate level of discipline and, perhaps, increased discipline of unethical attorneys. The Supreme Court’s remand order is also consistent with what seems to be a renewed level of engagement by the Court in discipline-related matters., OCTC believes it has identified certain common threads in the remanded stipulations. As examples, some stipulations may have contained too little discussion or recognition of the Standards, an insufficient explanation or justification for deviating from the Standards, or reliance upon pre-Silverton case law that supported a recommended level of discipline which – these days – may be considered inadequate by the Supreme Court…..

It’s as if we were decoding a message from the Sybil. Asking the Supreme Court to return another set of discipline cases is one way to fill in the lacunae in the original communication, fill it in with content of the State Bar’s choosing – including the wish that the inadequate “pre-Silverton” case law would just go away. The State Bar has read the tea leaves as it wants and seeks confirmation that it understands the message, even if that means stepping on the necks of a couple of dozen respondents to do it.   The audacity of the motion lies as much in its ambition as its lack of scruples.

While the citation to Silverton citation in the Court’s original order is bound to inflame the idea that Silverton was a watershed event, that it belied by the citation to Brown and it is really Brown that merits attention. That case involved an attorney who was convicted of failing to pay employment taxes. The State Bar Court recommended a public reproval; the Supreme Court took the case on its own motion and imposed sixty days actual suspension. While the Court emphasized the importance of the Standards, saying they should be followed “whenever possible”, it ultimately looked to its own precedent in discipline involving tax convictions for the answer, after noting the range provided in the Standards was so broad as to provide little practical guidance.

The Ethos of a Discipline Defense Lawyer

/ David Cameron Carr / Leave a comment

A few months ago,  I was involved in a very ugly deposition while defending a lawyer in a discipline matter.  The deponent was herself a lawyer, and while not technically  the complainant, the moving force behind the State Bar complaint.  Each of my questions were met with a string of silly objections by her counsel, a former law school buddy clearly appearing as a favor, followed by the two of them grinning at each other as if they had just done well on a law school examination.  After a few hours of this, I thought I had enough to completely destroy her credibility at trial, so I ended the deposition.  As we left, she hissed at me “How do you sleep at night, doing what you do?”.  “Just what is it that you think I do?”  I asked.  “You get bad lawyers off!” she sneered.   I shouldn’t have done it, but my professional thick skin had been worn thin by this point, so I replied “Your ignorance is showing.”

It’s  a common perception.  I have been told that my opinions and observations may be discounted because of the people I represent.  It is certainly true that representing a certain type of client will influence your perception.  That is one reason why every lawyer needs to have not only ethics but also an ethos.

What is the ethos of a discipline defense lawyer? Not getting bad lawyers off but:

  • Insuring that the process is fair.
  • Making sure the Respondent’s voice is heard.
  • Achieving a result that is just.
  • Helping the client to rehabilitate themselves from their misconduct, if they have committed it.
  • Educating the profession and public about attorney misconduct and legal ethics.
  • Working to change misguided law.

You can’t truly have ethics unless you have an ethos, even if you can’t always live up to it.   Without it, you are just an animal in a cage of external regulation, responding to a fear of punishment.  I once heard a fellow law student say that the purpose of our legal ethics class was to teach us how to get around the rules.  With an ethos like that, I wonder where he is to today.  Perhaps I will get a call from him tomorrow.

Complacency and ignorance about legal ethics are widespread.  Ignorance is more easily remedied.  Complacency is the tough nut to crack, in part of because legal ethics is often taught as that cage of external regulation rather than internalized principles to live your professional life by.  No one likes being in a cage, so we resist.

So it turned out that the lawyer that I deposed informed the State Bar that she would not show up at trial despite my subpoena.  We settled the case for what it was really worth.  What sort of ethos do you suppose she has?

corruption: the legal profession’s crisis of meaning

/ David Cameron Carr / Leave a comment

How are we to avoid those in office becoming deeply corrupt when everything is devoid of meaning?

Kafka, Der Process (also known as The Trial)

Larry Lessig’s commencement address to the Marshall Law School graduating class addressed the topic of corruption.  Not just the obvious, capital C Corruption of undue influence but the more subtle of corruption of a profession that has lost touch with a large part of what it means to be lawyer.

Instead my point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the people part. The person part. Or the real person part. The part that touches real people. With real problems.

The part that keeps a family in their home against an unjust demand for eviction. Or that enforces a simple contract with a bank, to supply the credit for a coffee shop. Or that protects a woman against her abusive husband. Or that forces an insurance company to pay on a claim they rightly owe. Or that defends a child in a foster home against the neglect of a distracted state.

This too is law. The law of Erin Brockovich, not the law of Cravath Swaine and Moore.

But here’s the thing about this law:

No one thinks it works well.

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.

Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.

The law of real people doesn’t work, even if the law of corporations does.

This is a natural consequence if lawyers are viewed as hired guns, or a mere legal technicians, rather than as agents of justice.   Legal ethics is largely about how lawyers fulfill the role of agents of justice in a capitalist society.   Ethics is inseparable from ethos; when no one is quite sure what the meaning of our work is, our system and all the participants in it are corrupted.  Recognizing that corruption in ourselves is the first step toward changing it.