Legal Law

How would you outline ethics?

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I’m having an Alice in Wonderland moment. A novice attorney with massive student debt representing a penniless client in a 7th Circuit case was reprimanded for not showing up for the hearing. The attorney had pointed out that neither she nor her client could afford to travel from New York to Chicago for this argument. She said she consulted with an ethics attorney who told her not to represent impoverished individuals who cannot pay their fees and/or travel expenses. Wait? Am I reading this correctly? When access to justice is a major problem, an ethics lawyer told her, “Don’t represent her.” Eventually, the reprimand was withdrawn.

And stop the press, or whatever the 21st century version would be, because the State Bar of California has recommended that Tom Girardi be stripped of the bar. What a surprise!

Isn’t that a little late? Girardi has already resigned from the bar and with various creditors chasing him, his impending divorce from a reality star and his Alzheimer’s diagnosis, the likelihood of him ever returning to the legal practice is doubtful.

Speaking of ethics, or lack thereof, prosecutors have hired an outside law firm to investigate whether previous complaints against Girardi have been compromised because of his close ties with prosecutors. In a statement, the chairman of the bar’s board of trustees said, “The bar has retained a Los Angeles-based law firm to assess whether willful misconduct by individuals associated with the state bar has affected the handling of complaints against Girardi could.”

Those most associated with Girardi, who worked at the bar, are gone and it’s unlikely anyone will suffer any consequences beyond what may have already happened. However, when it comes to proposing the implementation of policies and practices that will prevent another Tom Girardi, then the investigation is a good thing. If it’s just pointing the finger at bad actors of the past and saying, “that was then, that’s now,” I’m not convinced any report will make a difference.

Now it’s time for the legislature to begin the annual coal raking from the prosecutor’s office as the annual tax squeeze gets underway. Legislature sets prosecutorial fees, and since that’s happened over the past year, bar officials might want to practice dancing on those hot coals before they show up in Sacramento.

An interesting fact in the LA Times article that I didn’t know before: Girardi had three disciplinary complaints against him in the 1990s. The Bar Association, for whatever reason, limited discipline to a private (not even public) rebuke, and so Girardi retained his license and the public was kept in the dark. So much for public protection. Regardless of the nature of the various alleged wrongdoings, Girardi skated and got a cheaper deal than the average Tom. Just another example of unfairness in the disciplinary process, hammering an unknown conclusion for minor misconduct. Time for another overhaul of the disciplining process?

Have you ever heard or seen the word “Dreckitude”? New York Times columnist Maureen Dowd wrote that the late fashion editor Andre Leon Talley used it, explaining that it means someone or something is a complete and all-hot mess. Our profession does not escape this stupidity. See Tom Girardi’s example above and John Eastman’s example below.

Federal Judge David Carter here in the Central District of California is known for not shying away from doing what he believes is the right thing to do. Most recently, he said “not so quickly” to John Eastman in his attempt to evade a subpoena from the House January 6 Select Committee for his emails from Chapman University. Leave Carter to make short work of Eastman’s arguments.

What amazes me is that passers-by think that emails sent from a business email address have any privileges, even those sent from a disgruntled employee to his attorney. (Surprise!) Every in-house attorney has stories about employees who were too stupid to either read the employee handbook or believe it applied to them. (Have you heard the one about the employee who emailed porn to his co-workers? Of course you have.) Every employer worth anything has the words in their employee handbook that employees shouldn’t expect privacy, especially in emails. Eastman must have thought he didn’t need to read the Chapman University staff handbook or that it didn’t apply to him. However, the university says that every time Eastman logged on, a reminder appeared on the screen. Oops.

Eastman messed with the wrong judge. Carter, a Vietnam veteran who fought at Khe Sanh, is known for being fearless. He is the judge presiding over homelessness trials in Los Angeles and Orange counties. He has regularly visited camps for the homeless, spoken to the homeless and is not afraid to clash with parties and lawyers who he feels are not trying to find a solution fast enough. He wants answers, not excuses, and he wants answers now. If only more judges were like that. As Liz Dye pointed out, Carter has his own list of rockets, and he fired them at John Eastman.

Do you think prosecutors could open an investigation into John Eastman’s work to help overthrow the election? He is admitted here and therefore had to take the solicitor’s oath, which includes the phrase “I will support the Constitution of the United States”. Eastman’s activities hit exactly what we are meant to do as attorneys, which is to uphold and defend the Constitution. Any bets what the State Bar might do?

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers working as a lawyer in a kinder, gentler time. She has had a varied legal career, including stints as an assistant district attorney, a solo practice and several senior in-house appearances. She now mediates full-time, which gives her a chance to see dinosaurs, millennials, and those in between interact — it’s not always polite. You can reach them by email at oldladylawyer@gmail.com.

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