Tag Archive: Bar

Liars cannot be rehabilitated but drunks can

Can one ever be rehabilitated from moral turpitude?

Remember Stephen Glass? He was the young journalist (in his 20’s) who lied and fabricated news stories. He was found out, disgraced and fired, never again to be hired as a journalist. A movie was made of his escapades, Shattered Glass. Fast forward through psychoanalysis, moving from New York to California, studying law, writing a successful  book about journalism and “growing up.”

He went to law school, clerked for two federal judges, and interned in a law firm. He applied to the New York Bar, but withdrew his application when he learned that he would be rejected on moral turpitude grounds. He has now applied for admission to the California Bar. He worked for a California personal injury lawyer. Each of his employers has supported his application.

Despite his literary success, his scholastic achievement, and his apprenticeship in the law … and the passage of more than 10 years since his misdeeds, the State Bar of California opposes his admission to the Bar, as did New York. He pursued, however, and the matter is now before the California Supreme Court, after a 10 day confidential bar trial.

The real question is whether Glass is rehabilitated. If you defile one profession (journalism), are you forever tainted thereafter? Is our “penal” system meant for retribution or rehabilitation? We allow lawyers who have stolen from trust accounts because of alcoholism and drug addiction (diseases) to reenter the practice of law. Is there a different standard here? Not being privy to the trial testimony, one can only wonder why the Bar is so adamant in its position, given the support for Glass that is public.

We don’t have a really good definition of moral turpitude beyond platitudes; it’s on a case by case basis. And we don’t have a really good definition of rehabilitation; again, this is on a case by case basis. But, Glass’ experience in the legal community suggests that he has learned his lesson … a particularly important lesson when one is an officer of the court and the court relies on attorneys’ assertions representing clients.

Perhaps I am a bit cynical here. But, I wonder why the Bar is so harsh on Glass when we all can call out the names of lawyers who misquote case citations in briefs and otherwise misrepresent to the court in order to advance their position. Yet, these lawyers are seldom reprimanded, let alone disbarred. And in the field of sport, we know athletes “cheat” in order to better their chances of winning a race, often with impunity. Yet, here we have a person who has “paid a high price” for his cheating, has done what he could to rehabilitate himself, and yet is being denied the license of his new chosen profession.

Why is it that drunks and alcoholics can be considered rehabilitated even when they have stolen from their clients trust accounts or have been involved with terrible accidents, sometimes causing death to their victims? But, liars? Liars who have not caused anyone physical injury? With due respect to the Bar of which I am a member, Glass did not commit a heinous crime and should be given another chance.

View page

State Bar to be dismembered

William Hebert, President of the State Bar of California, is leading the charge to dismember the State Bar.  Hebert’s plan would eliminate six lawyers’ seats on the Board of Governors, shrinking the current 23-member body to 17. The Governor and Legislature would still name six non-lawyers to the Board, but the state Supreme Court would choose the remaining 11 lawyer-members, stripping Bar members’ current power to elect them.

In other words, despite paying dues, practicing lawyers would no longer have any say in the election of the people who govern their every action, their every responsibility to the public and their very right to earn a living. Does this sound a little like “taxation without representation?”

Yes, the state Legislature’s edict was to study the issue of governance and respond to Legislature. But, there is an option not being pursued by the Bar: Responding that the status quo works just fine, and “if it ain’t broke, don’t fix it.”  Or, let’s identify exactly how the Bar is being unresponsive to the public and address those issues. A wholesale change being contemplated will not change the public’s perception nor will it protect the public any more so than the current body does.  This reminds me of the recent insurance discussion. The public would have been protected only be demanding that lawyers have malpractice insurance. But, the Bar didn’t go that far. Instead, they merely made it a requirement to notify clients if they didn’t have such insurance. In other words, we’re looking for band-aids; we’re not looking at the real issues. The Legislature didn’t help by connecting this report to the dues bill. And eliminating the voice of lawyers in the election of its governing body likewise will not address the Legislature’s core concerns.

The issue, raised by a body whose members no longer contain a meaningful number of lawyers, is about public protection … and the perception by some that the State Bar’s sole mission should be to protect the public. I don’t know where these folks have been hiding, but that is the mission of the current Bar. All one has to do is read the Rules of Professional Conduct. All one has to do is speak to the hundreds, if not thousands, of lawyers who feel the wrath of the Bar by its actions and in-actions (and I’m not referring to the disciplinary system that appropriately charges a small percentage of lawyers with misdeeds).

In fact, only one State Bar President in recent memory was so bold as to suggest that the State Bar has two goals: One is to protect the public; and two is to help lawyers be more effective for their clients and more efficient in the delivery of their legal services, again for the benefit of the public. Neither the staff nor any other president in recent memory has publicly uttered anything but the first goal.

And if it’s a question of being “more responsive to the general public,” there are other approaches that can be suggested. But Mr. Hebert doesn’t even look in that direction. Merely cave into the Legislature out of fear that a dues bill might be held hostage. Does this sound like a British leader we remember in dealing with a certain tyrant?  Appeasement won’t work in this circumstance either.

I have been a very strong supporter of the integrated bar all these many years since law school. However, Mr. Hebert has finally caused me to flip the switch. I am now in favor of converting the State Bar to a licensing and disciplinary agency only. The result will be a savings to lawyers of at least 20% of their current dues. It takes 80% of the dues to run the disciplinary system. That’s close to$32 million. Lawyers can then join voluntary bar associations, either local or state-wide, create the education programs they need for their betterment, lobby for laws that will benefit the public without impediment, and otherwise create activities that improve their professional conditions.

View page

Wireless network rules

<auer Brown writes about a new California Bar opinion that addresses wireless network use.

Quoting from their note, they say:

"Attorneys owe their clients a duty of confidentiality and competence. But when an attorney uses wireless Internet to communicate or access files, such as in an airport or other public location, is that communication over an unencrypted wireless network confidential? And is an attorney competent if he or she broadcasts client confidences, including employer confidences for in-house counsel, over an unencrypted network?

On January 20, 2011, the State Bar of California issued formal opinion no. 2010-179, addressing these questions. The opinion provides six factors that attorneys should consider when determining whether a particular technology is appropriate for their communication.

  • The level of security afforded by that technology, including whether reasonable precautions may be taken to increase that level of security by, for example, encrypting email.
  • The legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information—that is, whether the form of communication is protected by law, like telephones and information stored on computers.
  • The degree of sensitivity of the information—the more sensitive the information, the more security is appropriate.
  • The possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product—again, the more severe the consequences, the more security is appropriate.
  • The urgency of the situation—if a message absolutely must be delivered immediately, security is a secondary consideration.
  • The client’s instructions and circumstances, such as access by others to the client’s devices and communications—if, for example, a client has specified that email is not confidential enough, or that a particular kind of communication must be encrypted, the attorney must comply with those instructions."  See their note for more.

View page