Ethics Lawyer David C. Carr

Newsletter July 2017

Welcome to the Ethics Lawyer Newsletter for July 2017

 

California Supreme Court, San Francisco

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 Colantuono

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.

Mimi Lee

Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2162
Fax: 415-538-2171
Email: mimi.lee@calbar.ca.gov


 

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:

Dear Elana:

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.

It is probably a good thing that email was not in general use in 1993.  The United States Attorney successfully moved to sanction Swan, based in part on section 6068 as made applicable by the local court rules of the Central District.  Swan naturally appealed, arguing among other things that he had a First Amendment right to be offensive. The Circuit Court found the term “offensive personality” so vague as to be unenforceable.  In 1997 the California Legislature amended the statute and eliminated the prohibition, an action that launched the modern movement toward a number of voluntary, unenforceable and mostly unsatisfying  “civility codes”  including an initiative by former President of the State Bar of California that led to not only a code but an entire “civility toolbox.”

New York’s equivalent of the civility toolbox, the New York State Standards of Civility only addresses incivility in the course of the practice of law, not general incivility by an attorney.  Kasowitz’s statements, while connected to his representation of a client, were not made in the course of practicing law.  They are probably beyond the reach of the rules of ethics.  But if he were to be convicted a crime connected with those statements, it is likely to be deemed to reflect on his fitness to practice of law. In the Matter of  Frascinella (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 543 involved a California lawyer who was convicted of exhibiting a replica of a firearm in a threatening matter (Penal Code section 417(a)(2).)   He brandished it at the receptionist in his office suite after being served with a three-day notice to quit.  The Court found that his actions created genuine fear and were acts of moral turpitude.

The Empire State is too enlightened to embrace the atavistic concept of moral turpitude but New York Rule of Professional Conduct 8.4(b) prohibits illegal acts that reflect on a lawyer’s fitness to practice law.  Discipline still seems an unlikely prospect given the First Amendment’s protection of offensive speech, and the cartoonish nature of the threat, reading like a bad parody of a Martin Scorcese movie.  Wall Street Toughest Lawyer will more than likely continue to be tough.