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Ethics Byte

Online access to ethics opinions would guard against ‘dog law’

By Diane Karpman

Diane KarpmanAs 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  However, the unpublished opinions (not citable) are freely available at the State Bar Court’s website.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

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.