Welcome to the Ethics Lawyer Newsletter for July 2017
California Supreme Court Asserts Control Over Admissions
The California Supreme Court asserted its inherent plenary authority over the attorney admissions process by enacting new California Rules of Court 9.3 through 9.6 on June 21, 2017 (effective 1/1/18.) New Rule 9.3 explicitly restates the high Court’s authority over the admissions process. New Rule 9.4 gives the Supreme Court authority to appoint 10 members of the 19 member Committee of Bar Examiners; Business and Professions Code section 6046 formerly allowed the State Bar Board of Trustees to make those appointments. New Rule 9.5 provides that admissions rules promulgated by the State Bar must be approved by the Supreme Court. Last, but certainly not least, new Rule 9.6 makes the Supreme Court responsible for setting the passing score for the bar examination, as well as approving the “format, scope, topics, content, questions, and grading process” as determined by the Committee of Bar Examiners. This new rule comes amidst the controversy over California’s high required passing score on the bar examination, a controversy that even caught the attention of the New York Times.
Michael Colantuano Elected Last (?) President of the State Bar of California
Michael Colantuano, a member of State Bar of Trustees since 2012, has been elected President of the State Bar of California, defeating fellow trustee Danette Myers. If changes contemplated by the Legislature are approved and signed into law, Mr. Colantuano would be the last elected President of the State Bar. SB 36 would replace the elected President with a Chair and Vice Chair appointed by the California Supreme Court, among many other changes including spinning off the State Bar sections and reducing the number of trustees to 13, 7 appointed by the Supreme Court and six by the political branches, thus eliminating trustees elected by the members of the State Bar.
State Bar Shuts Down “Fake” Law Firm
The State Bar’s Office of Chief Trial Counsel (OCTC) has shut down a “bogus” law firm accused of victimizing immigration clients. On July 6, 2017, OCTC obtained an order from Angeles County Superior Court under Business and Professions Code section 6126.3 allowing the State Bar to seize client files and other records of Servicio Latino Legal Office, SLLSCO Inc., 1625 W. Olympic Blvd., Suite M-107, Los Angeles. The raid comes as the Office of Chief Trial Counsel is aggressively pushing its prosecution of the unauthorized practice of law in the wake of Legislative criticism that those complaints languished during the previously Chief Trial Counsel’s administration. It is unknown whether OCTC investigators wore their “State Bar” windbreakers despite the hot weather during the raid.
Assembly Judiciary Committee Approves Fee Bill Making Radical Changes to State Bar
The Assembly Judiciary Committee unanimously approved SB 36 on Tuesday, July 18, 2017. The legislation authorizes the State Bar to collect up to $390 in annual dues from California lawyers for the next two years. The bill also makes dramatic changes to the structure and governance of the State Bar of California, including reducing the State Bar Board of Trustees from 19 to 13 by eliminating elected attorney trustees and creating a board with 7 attorney members and 6 public members all appointed, spinning off the State Bar sections into a nonprofit corporation and replacing the elected State Bar President and Vice President with a Chair and Vice Chair appointed by the Supreme Court.
Public Comment: Revisions to Prosecutor Misconduct Rule
The State Bar Committee on the Revision of the Rules of Professional Conduct has put out for public comment a revised prosecutor misconduct rule, proposed new Rule 5-110, also known as Rule 3.8. This follows consideration of suggestions from the California Supreme Court regarding the revised rule originally sent to the Supreme Court earlier this year.
Deadline: August 28, 2017
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments. However, if you cannot use the online form, comments may be submitted by mail to the address indicated below.
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
That’s Why They Call It Practice: Beyond the Pale But Beyond the Reach (?)
The news this week told us that the President’s personal lawyer Marc Kasowitz, the self-proclaimed “toughest lawyer on Wall Street” had responded to some emails asking him to resign as the President’s lawyer with some rather intemperate language including “I’m on you now. You are fucking with me now Let’s see who you are Watch your back, bitch”, “Call me. Don’t be afraid, you piece of shit. Stand up. If you don’t call, you’re just afraid.” “I already know where you live, I’m on you. You might as well call me. You will see me. I promise. Bro.” The sender of the emails apparently construed these words as a threat. While you might think these words entirely foreseeable coming from the “toughest lawyer on Wall Street” they do raise an ethics issue. Are such responses inconsistent with a lawyer’s duty as an officer of the court?
Once upon a time in a strange land called California, the answer might have been much clearer. Until 1997, California Business and Professions Code section 6068, the statute setting forth the duties of an attorney, provided that it was the duty of an attorney to abstain from “all offensive personality.” The statute did not restrict its reach to “offensive personality” in the course of the practice of law. But in 1995, the Ninth Circuit in a criminal case entitled United States v. Wunsch found the “offensive personality” prohibition unconstitutionally vague. In Wunsch, one of the co-defendants had been represented by an attorney named Frank Swan. In response to an unopposed and successful motion to disqualify attorney Swan by the female Assistant United States Attorney, he penned the following personal missive:
I have something here that I think applies to you.
Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.
Very truly yours,
/s/ Frank Swan
FRANK L. SWAN, INC.
Appended to the letter was a single sheet of paper with the following photocopied words, all enlarged and in capital letters:
MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER.