Online access to ethics
opinions would guard against ‘dog law’
By Diane Karpman
As I write this column, the
jury in the John Edwards trial has just begun deliberating. What a sordid mess
for one who sought to become the leader of the free world to now be facing a
possible maximum sentence of 30 years. Part of the defense seemed to be that he
was no longer a candidate, and therefore the money was not used for political
purposes. It was only used to conceal a tawdry affair from his cancer-ridden
spouse. Nobody could even make up these facts.
Scott Thomas, former Chair of
the Federal Election Commission, was poised to testify that third‑party
payments (Bunny Mellon’s money, or “Bunny money”) used to cover up an affair
during a political campaign had never come up during his 30 years with the
agency. In other words, there has never been a case involving a conviction for
that conduct. Lawyers rely on precedent to establish new law, or to conform
their conduct to accepted norms.
As you all know, lawyers are
subject to discipline when their conduct falls below certain requirements and
violates the Rules of Professional Conduct. At the California State Bar Court,
there are trials and there is an appellate department that has for more than 20
years published the State Bar Court Reporter, which is available for an initial
subscription of $375, with updates for $150 per year. You can also purchase
these cases via Lexis and Westlaw.
But wait a minute, you might
be saying. Don’t our dues already fund the State Bar discipline process: the
investigators, prosecutors, judges, facilities, and everything contained
within? You mean we have to pay additional sums to find out how the cases come
out, after we paid for everything else? Isn’t that like double taxation? How
would the decisions exist if we had not already paid for them? Don’t we want
lawyers to conform to their obligations? Isn’t it counterintuitive to charge
them extra for the decisions?
Now, it is true that you can
access the decision if you know the person’s name. Last month, I was looking
for the Johnson decision. Trying to “backdoor” it, I went to the member search
on the site, only to find that there were 1,287 lawyers named Johnson in
California.
These cases are extremely
interesting, although rarely cited because nobody can find them. However, the
unpublished opinions (not citable) are freely available at the State Bar
Court’s website. For example, the Matter of Robert Eaton Dowd, (unpublished) has information you all should be
aware of. The Review Department held that having a staff person sign your name
to pleadings, proofs, and other documents violates Business and Professions
Code § 6068(d), never to “seek to mislead the judge or judicial officer by an
artifice or false statement of law or fact.” Not just sworn declarations and
proofs of service, but any pleading. Pleadings with simulated signatures “shall
be stricken,” (Code Civ. Proc., § 128.7, subd. (a)), (Dowd, page 4),
because it was not subscribed by the hand of an attorney. Surely no attorneys
have ever phoned their offices late on Friday afternoon instructing their staff
to just sign their name to a pleading in order to beat the traffic, or get home
to be with their families. If lawyers are to be held accountable for their
errors in judgment, they should at least know what the rules are.
As California
Supreme Court Justice Joseph Grodin explained, “The philosopher‑lawyer
Jeremy Bentham characterized as ‘dog law’ a system in which a person has no way
of knowing that he is doing something wrong until he is punished for it.” Leoni v. State Bar.
The State Bar Court’s
decisions are nuanced and sophisticated. They should be available in a useful
manner to the membership, who has already paid for them, or we have the kind of
system that Bentham described.
Legal ethics expert Diane
Karpman can be contacted at 310 887-3900 or karpethics@aol.com.
Editor’s Note: The State Bar Court is in the process
of making its State Bar Court Reporter available online without charge as a
service to attorneys and the public.