Wednesday, February 28, 2007
Page 7
PERSPECTIVES (Column)
County Bars May Do Some Things Which the State Bar May Not
Proposed Civility Rules Fail to Take Into Account Restrictions on Integrated Bar’s Activities
By ROGER M. GRACE
State Bar President Sheldon Sloan wants to accomplish something during his one-year presidency by which he will be remembered. Toward that end, he seeks promulgation by the Board of Governors of “California Attorney Standards of Civility and Professionalism.”
This would be followed by an effort to secure the signature of every active member on a pledge to abide by the rules.
A draft of the standards was issued last week. Its provisions are, by and large, simply lifted from existing guidelines of voluntary bar associations, primarily the Santa Clara County Bar Assn. There is, however, a problem.
The task force that assembled the draft borrowed provisions without thought. Private, voluntary organizations—such as local bar associations—are at liberty to make types of pronouncements which the State Bar of California may not.
Those voluntary groups may declare an expectation that each member will provide pro bono services, or even require that they do so, and may go so far as to limit speech by members that denigrates the legal system. Restrictions imposed by these groups may be as harsh of those of monastic orders. Any lawyer who doesn’t like the restraints may shed himself or herself of them by not joining or by resigning…without any hint of a threat to his or her continued right to practice law.
The State Bar is different. It may not use State Bar dues to disseminate to lawyers admonishments as to courses of conduct they ought to adopt when the conduct is not ordained by statute, decisional law, or binding rules. In particular, the Board of Governors is without authority to tell members they are obliged to donate services to community groups and the poor…must curb their criticisms of the legal system...or must do nothing in a courtroom that would demean, embarrass or humiliate the other side (even where fidelity to the client’s cause demands this). The drafters of the proposed standards do not recognize these limitations.
And what is the nature of the State Bar? It is, according to the state Constitution, a “public corporation.” Beyond that, its precise nature is unclear.
The California Supreme Court, ruling in 1989 in Keller v. State Bar—in which the plaintiffs challenged use of bar dues for promoting ideological purposes with which a given dues-payer disagreed—said the entity is “best described as analogous to a governmental agency.” The court barred scrutiny of the propriety of each individual instance of lobbying.
The U.S. Supreme Court granted certiorari. It acknowledged in its unanimous 1990 opinion that “the Supreme Court of California is the final authority on the ‘governmental’ status of the State Bar of California for purposes of state law” but found that its determination was not binding with respect to the pending federal issue. Observing that the “State Bar of California is a good deal different from most other entities that would be regarded in common parlance as ‘governmental agencies,’ ” the U.S. Supreme Court said that for purposes of considering the First Amendment claims, California’s integrated state bar would be viewed as being closer to a labor union, in a closed shop context, than a governmental entity. In either instance, the member is compelled to pay dues in order to work. The court applied to the State Bar an earlier decision barring use of compelled union dues for ideological purposes not “germane” to the purpose justifying mandatory membership (there, collective bargaining).
The California Supreme Court in a 1998 opinion reaffirmed its oft-stated view that the State Bar was created “as an administrative arm of this court for the purpose of assisting in matters of admission and discipline of attorneys.”
Providing yet another charaterization of the nature of the State Bar, a 2003 Court of Appeal opinion terms it “a limited, special-purpose unit of state government.” The opinion continues:
“While it is responsible for carrying out various statutory and constitutional responsibilities, its duties are conferred, circumscribed and overseen by the Legislature and Supreme Court. Moreover, what power the State Bar does exert is in furtherance of its narrow mission of serving as an ‘administrative arm’ of the Supreme Court for the purpose of assisting in matters of admission, discipline and regulation of attorneys practicing law in California courts.”
What is clear is that the State Bar may not use dues moneys to urge or prescribe conduct on the part of its members based on opinions or whims of the Board of Governors. With respect to matters that germane to the State Bar’s purpose, the governors may make recommendations with respect to standards of conduct to the Supreme Court or the Legislature, acting “as professional advisers to those ultimately charged with the regulation of the legal profession,” as the U.S. Supreme Court in Keller described the role.
This is in contrast to what local bar associations, as well as ethnic, specialty, and other bar groups, may do. They are free to proclaim beliefs in whatever ideological or moral precepts they wish. They may endorse candidates, take stances on proposed legislation on subjects unrelated to the administration of justice, or directly promote the interests of political parties or religions.
For example, there is a California Republican Lawyers Assn. Its mission includes “[e]ndorsing the appointment and election of Republicans to the judiciary” and building “Republican Party goals and ideals through a statewide network of supportive lawyers who understand and directly support Republican policy, agendas and candidates.” There is no tinge of impropriety in the CRLA engaging in those activities. On the other hand, the State Bar “may not engage in election campaigning,” as the California Supreme Court declared in its 1989 Keller opinion (an aspect not affected by the U.S. Supreme Court’s subsequent decision).
Here are some of the major problems with respect to the proposed guidelines:
•AS I MENTIONED YESTERDAY, the draft of the guidelines proclaims that “[a] lawyer should contribute pro bono time to community activities and to individuals who cannot afford legal services.” That language is nearly identical to that contained in the Sacramento County Bar Association’s 1994 “Standards of Professional Conduct.” Likewise the Alameda County Bar, in a 1994 “Statement of Professionalism and Civility,” calls upon its members to “[p]articipate in pro bono activities and encourage other attorneys to encourage other attorneys to help make legal services available to all.” The Orange County Bar Assn.’s 1990 “Standards for Professionalism and Civility Among Attorneys” supports “[e]ncouraging and engaging in pro bono work.”
As seen, those groups possess the right to voice such a view. No one is required to belong to the groups in order to maintain a law license.
Members of the State Bar’s Attorney Civility Task Force which formulated the proposed standards, might personally hold the opinion that a lawyer has a moral obligation to provide pro bono services. But it is not for the State Bar, through its Board of Governors, to proclaim any such view, any more than it would be within its purview to endorse the Ten Commandments or the Golden Rule.
The Litigation Section of the State Bar last year declared in its Model Code of Civility and Professionalism:
“A lawyer should encourage and engage in pro bono or other civic, educational or volunteer activities to assist those who are poor, underprivileged, disadvantaged, or otherwise unable to afford legal services.”
As a segment of the State Bar, it was out of line in including that sentence.
How lawyers devote their spare time and spare cash—whether to pro bono labors, monetary donations to bar foundations, leading Girl Scouts on trips to the zoo, or whatever—is plainly none of the State Bar’s business.
•ONE STANDARD, BORROWED from the Sacramento Bar Association’s guidelines, provides that “in communications about the legal system and with participants” (the word “participants” not being defined), the “lawyer’s conduct should be consistent with high respect and esteem for the civil and criminal justice systems.” It’s added: “This standard does not prohibit a lawyer’s good faith, factually based expressions of dissent or criticism made in public or private discussions with the purpose of improving the legal system or profession.”
Nonsense! A lawyer is vested with First Amendment rights. That surely includes the right to bad-mouth the system, in private conversations, in public speeches, in writings. To propose that the State Bar seek to deter speech about the civil or criminal justice system by a lawyer to another “participant” (whatever that term encompasses) is to suggest repression of a primary constitutional right without any arguable authority or justification for doing so.
The Business and Professions Code provides that “[n]o person who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, shall be certified to the Supreme Court for admission and a license to practice law.” The U.S. Supreme Court in 1961 upheld the constitutionality of that provision. The same code declares that such advocating of a violent overthrow of the government is a cause for disbarment. Few would take issue with either of those two provisions; freedom of speech does not extend to promoting sedition. But a vague rule that would purport to limit a lawyer’s denigration of the system to “good faith factually based expressions of dissent or criticism” backed by a constructive purpose cannot conceivably withstand constitutional scrutiny.
•THE PROPOSED RULES also include this stricture: “A lawyer should refrain from conduct that ridicules, pokes fun at, mocks, demeans, or otherwise embarrasses or humiliates others, the Court, or Court staff.”
Even a county bar would be remiss in propagating such a standard.
Cross-examination aimed at showing that a witness lied is apt to be embarrassing or humiliating. So is merely pointing to prior inconsistent statements, for that matter. Rousing closing argument that tears to shreds the position articulated by opposing counsel is by nature demeaning, even if delivered with utmost dignity.
The California Supreme Court, in a 2003 opinion, pointed to “an attorney’s paramount duty of loyalty to the client” which entails doing what is essential to “effective representation.” Effective representation will, under some circumstances, foreseeably cause an adverse witness extreme discomfiture, resulting in squirming, stammering, or tears. Fidelity to the client’s cause sometimes mandates the posing of relevant and otherwise proper questions notwithstanding the likelihood of such an effect on the witness. Yet, the proposed standard would bar such questioning.
Business and Professions Code §6068 says it is a duty of an attorney “[t]o advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.” The proposed State Bar standard, as presently worded, would bar an attorney from advancing such facts even if it were “required by the justice of the cause” where, as inevitably it would be, a source of embarrassment or humiliation.
The task force’s sweeping prohibition on conduct that is demeaning or causes embarrassment or humiliation is in contrast to language in the State Bar’s Litigation Section’s model code which, by use of examples, makes clear its restricted scope. It says:
“During a trial, a lawyer should refrain from engaging in any conduct or using any body language which is designed to ridicule, poke fun of, mock, demean, or otherwise embarrass or humiliate other counsel, parties, third-party witnesses, the Court, or members of the Court’s staff, including rolling his/her eyes, throwing up his/her hands, shrugging his/her shoulders, shaking his/her head, sighing deeply, or any combination thereof.”
The intended scope of a provision should, of course, be immediately discernible from its wording, not from examples trailing it. Perhaps it would be sufficient just to say that “[c]ounsel should always deal with parties, counsel, witnesses, jurors or prospective jurors, court personnel and the judge with courtesy and civility.” In fact, that’s precisely what’s said in a Los Angeles Superior Court rule.
The Los Angeles County Bar Assn. in 1989 promulgated litigation guidelines. Judges of the Los Angeles Superior Court gave the guidelines official sanction by incorporating them in the local rules as “recommendations to members of the bar.” They comprise rule 7.12...and that rule says about all that needs to be said.
It does not contain reference to any supposed pro bono obligation; it doesn’t purport to proscribe any conduct in court that causes embarrassment; it does not propose limiting an attorney’s speech about the court system.
Sloan has made the adoption of civility standards the primary goal of his administration. A task force was set up to draft the standards; one public hearing on them is slated to be held in San Francisco (on March 14) and another here (on March 28). It all seems rather grandiose.
If there is a need for statewide civility rules, the Board of Governors might simply seek to elevate to statewide status Los Angeles Superior Court’s rule 7.12. But I just don’t foresee such an approach. There would be no limelight and glory in that.
A question does arise as to whether the Board of Governors can bring this code into being merely by an exercise of its will. The assumption under which the State Bar appears to be proceeding is that the standards would not be mandatory, so no Supreme Court approval is required.
Is that so?
I’ll get into that on Friday, as well as pointing to some relatively minor flaws in the proposed rules.
Copyright 2007, Metropolitan News Company