Friday, August 8, 2014

California State Bar Serves Up Delicious Irony

"This is delicious!"
Lawyer ethics rules — particularly those regarding confidentiality — are supposed to protect clients.  But sometimes the bureaucrats are so obsessed with giving the impression that they are protecting the public that they actually lose sight of that goal.  For example, when doing research for a new law review article, I came across several articles discussing the California Bar’s “Formal Opinion 1986-87.”  This opinion is now quite old, but it is so absurd that it is still being discussed and debated in legal publications as recently as 2013.  In short, the opinion deals with California’s version of the bizarre ethics rule that prohibits an attorney from revealing any information relating to the representation of a client.  And the word “information” includes not only confidential client communications and other secrets, but all information, including information that is widely and publicly available.  (If you are a Wisconsin lawyer and think this is ridiculous, you might be surprised to learn that we, along with most states, have similarly absurd rules in the form of SCRs 1.6 and 1.9.)

The purpose of this anti-lawyer ethics rule is to prevent an attorney from discussing things about his cases — even if those things happened on the record in open court.  But the California Bar took this already absurd rule to a previously unimaginable, higher level of absurdity.  Cal Bar considered this hypothetical:

You are a defense lawyer and you are going to a sentencing hearing with your client.  Before pronouncing sentence, the judge asks you the same question he asks at every sentencing hearing: “What is your client’s criminal record.” Your client has one prior conviction from a few years ago.  This information is publicly available and, if the judge was a little more ambitious, he could find it by going to the clerk’s office (in the “old days”) or with a few keystrokes on a public database (modern day).  What do you do, Mr. or Mrs. Lawyer?

“What do you mean, what do I do?” you might ask.  “I tell the judge the client has one prior conviction for [fill in the blank]” you might say.  Not so fast.  Cal Bar says that you, the lawyer, are either supposed to remain silent, or tell the judge to do his own damn work and go find the client’s criminal history himself!

But why can’t a lawyer disclose to the judge publicly available information requested for purposes of sentencing?  Cal Bar says that doing so would be an ethics violation because you would be revealing information relating to the representation, even though you (the lawyer) learned of the information from a public source, and the judge could find it himself with a little time and trouble. 

Okay, that is obviously ridiculous, but where’s the delicious irony?  Well, first, the people who are writing and interpreting rules that govern practicing lawyers have obviously never practiced law. 

Second, the ethics rules are supposed to protect the client.  Yet Cal Bar interpreted an already irrational ethics rule in such a bizarre way that the lawyer is actually required to agitate the judge that is about to sentence his client by telling the judge to go pound sand!  Take into account that the judge might have a packed courtroom and dozens of other cases lined up in the queue — or maybe he just wants to leave early and get to the golf course — and this now irritated judge might just tack a few extra dollars onto the client’s fine, or a few extra days onto the jail sentence.

And third, the best ironic twist is that when I eventually finish and publish my ethics-bashing, bar-bashing, and court-bashing law review article, my own Supreme Court Board of Bar Examiners will give me 15 continuing legal education (CLE) credits, including three ethics credits.  That’s 15 hours of my life that I won’t have to spend at what the expert on state bar associations calls the State Bar’s Annual-Butt-Numb-A-Thon CLE Conference.

Now back to my research.

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