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California Legal Ethics
8.1:100 Comparative Analysis of CA Rule
MR 8.1 provides that in connection with a bar admission application or a disciplinary matter, a lawyer must not knowingly either make a false statement of material fact, fail to disclose a necessary fact, or knowingly fail to respond to a lawful demand for information unprotected by the duty of confidentiality.
CRPC 1-200, the California rule that best correlates to MR 8.1, does not mention disciplinary matters. However, it does contain the same basic rule against knowingly either making false statements of material fact or failing to disclose material facts in connection with an application for admission. CRPC 1-200(A). California lawyers are also specifically prohibited from furthering the application for admission of a person whom the lawyer knows is "unqualified in respect to character, education, or other relevant attributes." CRPC 1-200(B). The rule does not prevent lawyers from serving as counsel for an applicant in proceedings related to bar admission. CRPC 1-200(C).
CRPC 1-200 is very similar to DR 1-101, with two minor exceptions. First, while DR-101 states that a lawyer shall not make a materially false statement in connection with his application for admission, CRPC 1-200 on its face, only applies to statements known to be false. Second, the language of DR 1-101 applies to known materially false statements and intentional non-disclosures of material facts in connection with a lawyer's own application for admission. Under CRPC 1-200, such conduct is not permitted in connection with "an[y]" application for admission.
8.1:200 Bar Admission
¥ Primary California References: RRAPL,
B&PC ¤ 6060, Cal. Rule of Court 983
¥ Background References: ABA Model Rule 8.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 21:101, 10l:1, ALI-LGL ¤ 2, Wolfram ¤¤ 15.2, 15.3
The State Bar's Committee of Bar Examiners has the power to examine all applicants and administer the requirements for admission and shall certify to the Supreme Court of California those persons who fulfill the requirements for admission to practice law. Rules Regulating Admission to Practice of Law in California ("RRAPL") I, ¤ 2. The Committee of Bar Examiners is appointed by the Board of Governors of the State Bar, the Senate Rules Committee, the Speaker of the Assembly and the Governor of California. RRAPL I, ¤ 2.
In order to be certified to the Supreme Court for admission to the California bar an applicant must in pertinent part:
(1) be at least 18 years of age, see Rules Regulating Admission to Practice of Law in California ("RRAPL") II, ¤ 2(a); B&PC ¤ 6060(a);
(2) be of good moral character, see RRAPL II, ¤ 2(b), B&PC ¤ 6060(b) [see discussion, infra];
(3) satisfy the general education requirements prior to studying law in compliance with RRAPL VII, ¤1, see also B&PC ¤ 6060(c)(1);
(4) satisfy the legal education requirements of RRAPL VII, ¤ 4, see also, B&PC ¤ 6060(e);
(5) register with the examining committee in compliance with RRAPL V, see also B&PC ¤ 6060(d);
(6) establish an exemption from, or pass the First-Year Law Student's exam in accordance with RRAPL VIII, ¤ 1, see also B&PC ¤ 6060(h);
(7) pass the professional responsibility exam, see RRAPL VIII, ¤ 3;
(8) pass the general California bar exam, which consists of multiple choice questions, written essays and "performance tests," see RRAPL VIII, ¤¤ 2,3;
(9) be in compliance with Court ordered child or family support obligations under RRAPL II, ¤ 6.
Applicants who are lawyers outside of California are in large part subject to the same requirements as general applicants, except with respect to the bar exam. Lawyers who have been admitted to practice before the highest court of any of the United States, the District of Columbia Court of Appeals, the U.S. Court of Appeals for the District of Columbia, the Supreme Court of Puerto Rico, the United States District Court for Gaum, or the United States District Court for the Virgin Islands may qualify for the Attorneys' Examination. The Attorneys' Examination consists only of the written essay questions and performance tests of the general bar exam, eliminating the multiple choice portion of the exam. See RRAPL IV, ¤ 1. Such lawyers may qualify to take the Attorneys' Examination if they have been "actively, substantially and lawfully engaged in the practice of law" in the United States or in the above stated jurisdictions for four of the 6 years immediately preceding a period of 15 days before the beginning of the exam. See RRAPL IV, ¤ 1(b).
Requirement of Good Moral Character
Applicants who receive adverse moral character determinations may file for an initiation of a moral character proceeding and hearing before the State Bar Court. State Bar Rules of Proc., 681. However, the applicant may not receive a speedy hearing since by motion of any party or upon the State Bar Court's motion, the proceeding may be abated "for such time and upon such terms as [the Court] deems proper." State Bar Rules of Proc., 683(a).
RRAPL X, ¤ 1 states that "'good moral character'" includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process." The fundamental question in moral character proceedings is "whether [the applicant] has committed or is likely to continue to commit acts of moral turpitude." Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 452, 55 Cal.Rptr. 228, 421 P.2d 76. In Hallinan, the court found that an applicant's arrests for non-violent civil rights protests did not involve moral turpitude. Id. at 462 (denying admission based on such conduct would "deprive the community of the services of many highly qualified persons of the highest moral courage."). The same applicant had an extensive history of engaging in fist fights, most of which occurred several years prior to his application for admission. See Id. at 464-470. While the court characterized the applicant's fighting as "censurable," it concluded that it lacked a direct bearing on the issue of good character. Id. at 471.
The applicant has the initial burden of proving that he or she is of good moral character. RRAPL X, ¤ 1; Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 55 Cal.Rptr. 228, 41 P.2d 76. See also, Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1058, 239 Cal.Rptr. 897, 741 P.2d 1138 (testimonials by lawyers and judges regarding an applicant's moral character are given "great weight" but are not conclusive); cf., March v. Committee of Bar Examiners (1967) 67 Cal.2d 718, 63 Cal.Rptr. 399, 433 P.2d 191. If the Committee of Bar Examiners does not rebut the applicant's showing of good moral character, the applicant has sustained the burden of proof. See Lubetsky v. State Bar (1991) 54 Cal.3d 308, 322-324, 285 Cal.Rptr. 268, 815 P.2d 341 (inadequate rebuttal evidence that applicant was responsible for mailing over one hundred obscene messages to former friend and others).
The Committee of Bar Examiners may investigate criminal charges brought against an applicant even if the charges resulted in a favorable termination for the applicant. Martin B. v. Committee of Bar Examiners (1983) 33 Cal.3d 717, 721, 190 Cal.Rptr. 610, 661 P.2d 160. In Martin B., an applicant was denied admission based upon a "retrial" of rape charges of which the applicant was acquitted 10 years earlier. Martin B. v. Committee of Bar Examiners (1983) 33 Cal.3d 717, 720, 190 Cal.Rptr. 610, 661 P.2d 160. The Supreme Court set aside the Committee's decision on fundamental fairness grounds because the applicant could not provide a meaningful defense in the committee hearings; among other things, there was no trial transcript, no reporter's notes, and the applicant could not properly cross-examine the complaining witnesses. Id. at 721.
Many cases involve a question of whether an applicant who has previously engaged in misconduct has successfully rehabilitated his or her character. The State Bar has set out certain non-inclusive factors which it considers relevant to this inquiry.
The following text was taken from The State Bar of California Factors that may be Taken Into Consideration When Evaluating the Rehabilitation of an Applicant Seeking a Moral Character Determination:
(1) The nature of the act of misconduct, including whether it involved moral turpitude, whether there were aggravating or mitigating circumstances, and whether the activity was an isolated event or part of a pattern.
(2) The age and education of the applicant at the time of the act of misconduct and the age and education of the applicant at the present time.
(3) The length of time that has passed between the act of misconduct and the present, absent any involvement in any further acts of moral turpitude. The amount of time and the extent of rehabilitation will be dependent upon the nature and seriousness of the act of misconduct under consideration.
(4) Restitution to any person who has suffered monetary losses through related acts or omissions of the applicant.
(5) Expungement of a conviction.
(6) Successful completion or early discharge from probation or parole.
(7) Abstinence from the use of controlled substances or alcohol for not less than two years if the specific act of misconduct was attributable in part to the use of a controlled substance or alcohol. Abstinence may be demonstrated by, but is not necessarily limited to, enrolling in and complying with a self-help or professional treatment program.
(8) Evidence of remission for not less than two years if the specific act of misconduct was attributable in part to a medically recognized mental disease, disorder or illness. Evidence of remission may include, but is not limited to, seeking professional assistance and complying with the treatment program prescribed by the professional and submission of letters from the psychiatrist/psychologist verifying that the medically recognized mental disease, disorder or illness is in remission.
(9) Payment of the fine imposed in connection with any criminal conviction.
(10) Correction of behavior responsible in some degree for the act of misconduct.
(11) Completion of, or sustained enrollment in, formal education or vocational training courses for economic self-improvement.
(12) Significant and conscientious involvement in community, church or privately-sponsored programs designed to provide social benefits or to ameliorate social problems.
(13) Change in attitude from that which existed at the time of the act of misconduct in question as evidenced by any or all of the following:
(a) Statements of the applicant.
(b) Statements from family members, friends or other persons familiar with the applicant's previous conduct and with subsequent attitudes and behavioral patterns.
(c) Statements from probation or parole officers or law enforcement officials as to the applicant's social adjustments.
(d) Statements from persons competent to testify with regard to neuropsychiatric or emotional disturbances.
The State Bar of California Factors that may be Taken Into Consideration When Evaluating the Rehabilitation of an Applicant Seeking a Moral Character Determination
"'The amount of evidence of rehabilitation required to justify admission varies according to the seriousness of the misconduct at issue.'" In re Menna (1995) 11 Cal.4th 975, 987, 47 Cal.Rptr.2d 2, 905 P.2d 944 (quoting Kwasnik v. State Bar (1990) 50 Cal.3d 1061, 1067, 269 Cal.Rptr. 749, 791 P.2d 319). See also, B&PC ¤ 6060.1 (denial of admission cannot be based solely on applicant's disciplinary violations at a university or accredited law school unless such violations involve moral turpitude or result in criminal prosecution in California or another state). A lawyer who is seeking admission after having been disbarred in California or another state "'bears a heavy burden of proving rehabilitation.'" In re Menna (1995) 11 Cal.4th 975, 47 Cal.Rptr.2d 2, 905 P.2d 944 (quoting Hippard v. State Bar (1989) 49 Cal.3d 1084, 1091, 264 Cal.Rptr. 684, 782 P.2d 1140); see In re Menna, 11 Cal.4th at 988 (lawyer disbarred in New Jersey for felony convictions for theft of client funds, failure to file tax returns and manufacture of methamphetamine provided "impressive" testimonials but failed to show his rehabilitation by clear and convincing evidence).
In Martin B., the Committee of Bar Examiners found an applicant lacking in good moral character because nine years earlier he filed a false claim seeking money from the government while serving in the Marine Corps. Martin B. v. Committee of Bar Examiners (1983) 33 Cal.3d 717, 725-726, 190 Cal.Rptr. 610, 661 P.2d 160. In finding that the applicant had shown rehabilitation, the California Supreme Court noted that since the time of his misconduct, the applicant had overcome alcoholism, attended college and law school, and for the past nine years maintained an unblemished record. See Id. at 725-726 (relying on Hallinan for the proposition that in the past the California Supreme Court "has considered participation in unlawful incidents at an early age to be youthful indiscretions, which should not bar admittance to our bar after several years of law-abiding conduct."). See also, Hightower v. State Bar (1983) 34 Cal.3d 150, 157, 193 Cal.Rptr. 153, 666 P.2d 10 (applicant demonstrated rehabilitation from conduct of engaging in unauthorized practice of law by thereafter maintaining an unblemished record and acknowledging the seriousness of his misconduct); March v. Committee of Bar Examiners (1967) 67 Cal.2d 718, 63 Cal.Rptr. 399, 433 P.2d 191 (applicant showed rehabilitation from testifying falsely before a House Committee through the "extraordinary" recommendations of several members of the bar and by admitting the wrongfulness of his conduct); cf., Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 744-745, 159 Cal.Rptr. 848, 602 P.2d 768 (applicant's refusal to make a "pragmatic confession of guilt" to alleged misconduct is indicative of good character rather than bad). But see, Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 605, 264 Cal.Rptr. 361, 782 P.2d 602 (former law enforcement officer who sold and abused cocaine while studying for the bar exam failed to show sufficient rehabilitation despite providing, inter alia, 33 character witnesses including a psychiatrist, a substance abuse counselor and six members of the bar).
Formerly, an out-of-state lawyer could be admitted pursuant to former Civ. Proc. Code ¤ 279 to practice in California courts upon the production of his or her out-of-state license and satisfactory evidence of good moral character. Courts, however, had the power to examine the qualifications of such an applicant. See 1880 Cal. Stat. Title V, ch. 1, ¤ 279, p. 56. A 1905 amendment to former Civ. Proc. Code ¤ 279 provided that district courts of appeal had the authority to admit an out-of-state lawyer. See 1905 Cal. Stat. ch. 8, p. 6. In 1931, former Civ. Proc. Code ¤ 279 was repealed and the examining committee of the California Bar was given jurisdiction over out-of-state lawyers applying to the California Bar. See 1931 Cal. Stat. ch. 862, pp. 1761-1762. The repeal of former Civ. Proc. Code ¤ 279 effectively ceased the practice of admission by motion in California.
For a discussion of the requirements for out-of-state lawyers to be admitted to the California Bar [see 8.1:220 Bar Admission Requirements, supra].
8.1:240 Admission Pro Hac Vice [see also 5.5:230]
Cal. Rule of Court 983(a) sets forth the eligibility requirements for an out-of-state attorney to appear as counsel pro hac vice. Under Rule 983(a), a person who is not a member of the State Bar of California may appear as counsel pro hac vice provided that: (a) he or she is admitted to practice in any United States court or in the highest court of a sister state; (b) he or she has been retained to appear in a particular cause pending in a California court; (c) an active member of the California bar is associated as a lawyer of record; and (d) such person has filed a written application to appear as counsel pro hac vice, which application has been granted by the court. Cal. Rule of Court 983(b) provides that the application shall state:
(1) the applicant's residence and office address; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in [California] in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record.
In connection with the application, Rule 983(b) requires the payment to the State Bar of California of a "reasonable fee not exceeding $50."
A person may not appear as counsel pro hac vice if he or she is a California resident, if he or she is regularly employed in California, or if he or she is regularly engaged in substantial business, professional, or other activities in California. For the importance of obtaining court approval of a pro hac vice application, see Birbrower, Montelbano, Condon & Frank, P.C. v. Superior Court (1998) 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1 (out-of-state firm which failed to obtain admission pro hac vice cannot collect fees for legal services performed in California).
8.1:300 False Statements of Material Fact in Connection with Admission or Discipline
In Spears v. State Bar an applicant failed the good moral character requirement for falsely stating on his application that he had never been charged with a crime amounting to either a felony or misdemeanor involving moral turpitude. Spears v. State Bar (1930) 211 Cal. 183, 187, 294 P. 697 (applicant has duty to make full disclosure of charges brought against him whether applicant was convicted, acquitted or the charges dropped); In re Gehring (1943) 22 Cal.2d 708, 140 P.2d 413 (re-admission denied for failure to disclose theft arrests). In Goldstein v. State Bar, a California lawyer failed to disclose in his application for admission that he had filed a previous application and that hearings had been conducted which concluded that he was not of good moral character. The Committee failed to discover said hearings until after the lawyer had been admitted into the bar; at which point, it brought a successful action to have the lawyer's name stricken from the roll of attorneys. See Goldstein v. State Bar (1989) 47 Cal.3d 937, 254 Cal.Rptr. 794, 766 P.2d 560; see also, In the Matter of Edmund C. Ike (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 483 (recommending that either lawyer be disbarred or stricken from the roll of attorneys for failing to update his bar application to include a felony arrest occurring months prior to his admission); Greene v. State Bar (1971) 4 Cal.3d 189, 93 Cal.Rptr. 24, 480 P.2d 976 (applicant misrepresented that he had been actively and substantially involved in the practice of law). However, an unintentional non-disclosure of a relatively unimportant matter does not justify denial of admission. Greene Id. at 189 (failure to disclose attendance of New York University Law School under question requesting information pertaining to legal education); Lubetzky v. State Bar (1991) 54 Cal.3d 308, 285 Cal.Rptr. 268, 815 P.2d 341 (non-disclosure of involvement in litigation).
For California lawyers, displaying a lack of candor and cooperation to the victims of their misconduct or to the state bar during disciplinary investigations or proceedings is an aggravating circumstance to be considered in determining discipline. State Bar Standards for Attorney Sanctions for Professional Misconduct, Standard 1.2(b)(vi); Franklin v. State Bar (1986) 41 Cal.3d 700, 710, 224 Cal.Rptr. 738, 715 P.2d 699. See also, Doyle v. State Bar (1982) 32 Cal.3d 12, 23, 184 Cal.Rptr. 720, 648 P.2d 942 (under certain circumstances false statements during disciplinary proceedings can constitute an offense greater than misappropriation of client funds).
8.1:400 Duty to Volunteer Information to Correct a Misapprehension
As the California Supreme Court put it:
A disciplinary hearing before the State Bar is an adversary proceeding in which the State Bar has the burden of proving misconduct. An attorney has no obligation to produce incriminating evidence on his own initiative. However, he has an obligation to respond to the State Bar's inquiries in a manner which is 'consistent with [the] truth.'
See Franklin v. State Bar (1986) 41 Cal.3d 700, 224 Cal.Rptr. 738, 715 P.2d 699 (quoting B&PC ¤ 6068(d), citations omitted). See also, In the Matter of Kritzer 1997 WL 93306 at 10 (lawyer whose testimony during disciplinary proceedings was impeached "cannot complain if his own testimony was vague, evasive or incomplete.").
At least one court has found that the attorney-client privilege applies in disciplinary proceedings. See Calvert v. State Bar (1991) 54 Cal.3d 765, 780, 1 Cal.Rptr.2d 684, 819 P.2d 424 (complainant in disciplinary proceedings waived privilege between herself and her former attorney who testified on behalf of petitioner by failing to instruct former attorney to claim the privilege). See also, Rodgers v. State Bar (1989) 48 Cal.3d 300, 311, 256 Cal.Rptr. 381, 768 P.2d 1058 (rejecting the argument that lawyer was denied due process in disciplinary proceedings because attorney-client privilege prevented him from disclosing information helpful to his case since lawyer actually did disclose all helpful information in proceedings). For more on the attorney-client privilege [see Rule 1.6 Confidentiality of Information, supra].
8.1:500 Application of Rule 8.1 to Reinstatement Proceedings
There is no California rule or statute that specifically addresses reinstatement or readmission proceedings. CRPC 1-200, the California rule that best correlates with MR 8.1, governs readmission as well as admission. See CRPC 1-200 Official Discussion.
8.2:100 Comparative Analysis of CA Rule
MR 8.2 contains two rules which are only loosely connected. MR 8.2(a) prohibits lawyers from making false or reckless statements regarding the integrity or qualifications of judges, judicial officers and judicial candidates. MR 8.2(b) requires that candidates for judicial office comply with applicable provisions of the ABA Code of Judicial Conduct.
In California, the statute which most closely resembles MR 8.2(a) is B&PC ¤ 6068(b). The California statute is, however, significantly more vague than the Model Rule. B&PC ¤ 6068(b) simply provides that it is the duty of a lawyer "[t]o maintain the respect due to the courts of justice and judicial officers."
As to California authority similar to MR 8.2(b), Proposition 190 amended California Constitution Article VI, Section 18(m), effective March 1, 1995. The state constitution now provides, "[t]he Supreme Court shall make rules for the conduct of judges both on and off the bench, and for judicial candidates in the conduct of their campaigns. These rules shall be referred to as the Code of Judicial Ethics." The California Code of Judicial Ethics, which was adopted by the state supreme court effective January 15, 1996, and amended by the state supreme court effective April 15, 1996, is similar to the ABA Code of Judicial Conduct. There are, however, key differences, particularly in the two codes' rules applicable to judicial candidates.
As an initial matter, it should be noted that the only provision of the ABA Code of Judicial Conduct which is on its face applicable to judicial candidates is Canon 5 (hereinafter "ABA Canon 5."). Similarly, CRPC 1-700 and California Code of Judicial Ethics Canon 6, ¤ E, provide that California Code of Judicial Ethics Canon 5, (hereinafter "California Canon 5") which parallels ABA Canon 5, is applicable to California judicial candidates. Accordingly, the comparisons here between MR 8.2(b) and applicable California rules analyze the portions of ABA Canon 5 and California Canon 5 applicable to judicial candidates and focus on the differences between the two Canons.
To begin with, ABA Canon 5 allows candidates who are not judges to retain an office in a political organization, but bars judges, including judges who are candidates, from acting as leaders or holding office in political organizations. See ABA Canon 5 ¤ A(1)(a); ABA Canon 5, ¤ B(2)(b)(i). California Canon 5, ¤ A, bars all judges and judicial candidates from acting as leaders or holding office in political organizations.
ABA Canon 5 allows judges who are up for election and judicial candidates to endorse publicly or to oppose publicly other candidates for the same judicial office in which the judge or judicial candidate is running. See ABA Canon 5, ¤ C(1)(b)(iv). However, judges and candidates are barred from publicly endorsing or publicly opposing candidates for other political office. See ABA Canon 5, ¤ A(1)(b). In California, Canon 5 allows judges and candidates to endorse publicly or oppose publicly judicial candidates regardless of whether they are involved in the same election. However, judges and judicial candidates in California are barred from publicly endorsing or opposing non-judicial candidates. See California Canon 5, ¤ A(2) and Advisory Committee Commentary.
Both ABA Canon 5 and California Canon 5 bar judges and candidates from making speeches on behalf of political organizations. See ABA Canon 5, ¤ A(1)(c); California Canon 5, ¤ A(3). However, both ABA Canon 5 and California Canon 5 allow judicial candidates to speak on their own behalf at political gatherings. See ABA Canon 5, ¤ C (1)(b)(i); California Canon 5, ¤ C. In addition, consistent with California Canon 5, ¤ A(2), judicial candidates may speak at political gatherings on behalf of other candidates for judicial office. See California Canon 5, ¤ A(2) and California Canon 5, ¤ C, Advisory Committee Commentary.
ABA Canon 5 allows judicial candidates to attend political gatherings. See ABA Canon 5, SB(2)(b)(ii) and ABA Canon 5, ¤ C(1)(a)(i). In California, attendance at political gatherings by judges or candidates is not prohibited, provided that such attendance does not constitute a public endorsement of either a non-judicial candidate or a measure which does not directly affect the administration of justice. See California Canon 5, Advisory Committee Commentary.
ABA Canon 5 bars judges and judicial candidates from soliciting funds but generally allows judges and judicial candidates to pay ordinary assessments, to make ordinary contributions to either political organizations or candidates, and to purchase tickets for political party dinners or other fund raisers. See ABA Canon 5, ¤ B (2)(b)(iii) and ABA Canon 5, ¤ C(1)(a)(i-iii); but see ABA Canon 5, ¤ A(1)(e) (exception to general rule applicable to judge not subject to public election). California Canon 5, while also barring the solicitation of funds by judges and judicial candidates, sets specific limits on contributions which judges and judicial candidates can make. A judge or judicial candidate cannot make contributions in excess of $500 to any one political organization, party or non-judicial candidate or make aggregate contributions of over $1,000 per year to all political parties, organizations or non-judicial candidates. These limitations, however, do not apply if a judge or candidate should wish to make a contribution either to a fund for distribution among judges who are candidates for reelection or to any judicial candidate. Also, judges and judicial candidates are free to purchase tickets to political dinners. However, the cost of the ticket which exceeds the actual cost of the meal is considered a political contribution. See California Canon 5, Section A(3), Advisory Committee Commentary.
ABA Canon 5 directs that judicial candidates "shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary ...." ABA Canon 5 also requires that judicial candidates shall encourage members of their families to adhere to "the same standard of political conduct." California Canon 5 contains no such provision, except to the extent that the Advisory Committee Commentary states, "[a]lthough members of the judge's family are not subject to the provisions of this Code, a judge shall not avoid compliance with this Code by making contributions through a spouse or other family members." See California Canon 5, Advisory Committee Commentary.
ABA Canon 5 requires judicial candidates to prohibit or discourage those who work for them or at their direction from doing, on the candidate's behalf, anything which violates ABA Canon 5. See ABA Canon 5, ¤ A(3)(c). California Canon 5 has no similar provision.
ABA Canon 5 prohibits a candidate for judicial office from:
(i) mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;
(ii) mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or
(iii) knowingly misrepresent[ing] the identity, qualifications, present position or other fact concerning the candidate or an opponent.
See ABA Canon 5, ¤ A(3)(d).
California Canon 5, while containing an almost verbatim recitation of the latter two points, omits the first point regarding promises of conduct while in office. See California Canon 5, ¤ B.
ABA Canon 5 provides that if a judicial candidate's record is attacked, he or she may respond. See ABA Canon 5, ¤ A(3)(e). California Canon 5 contains no similar provision.
ABA Canon 5 provides that a candidate seeking appointment to a judicial office may not solicit or accept campaign fees, personally or through a committee. See ABA Canon 5, ¤ B(1). However, ABA Canon 5's rules as to candidates in a judicial election (as opposed to those seeking appointment) differ and are similar to California Canon 5's rules which contains no bar to solicitation or acceptance of funds. As the California Advisory Committee Commentary states:
In judicial elections, judges are neither required to shield themselves from campaign contributions nor are they prohibited from soliciting contributions from anyone including attorneys. Nevertheless, there are necessary limits on judges facing election if the appearance of impropriety is to be avoided. Although it is improper for a judge to receive a gift from an attorney subject to exceptions noted in Canon 4D(b), a judge's campaign may receive attorney contributions.
See California Canon 5, Advisory Committee Commentary; see also ABA Canon 5, ¤ C(2).
ABA Canon 5 prohibits generally, with a number of exceptions, a candidate for appointment to a judicial office from engaging in any political activity to secure the office. See ABA Canon 5, ¤ B(2). California Canon 5 contains no similar provisions.
The annotated comments to the Model Rules assert that MR 8.2(a) is substantively similar to the parallel Model Code provisions. Specifically, DR 8-102(A) prohibits a lawyer from knowingly making "false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office" and DR 8-102(B) prohibits a lawyer from knowingly making "false accusations against a judge or other adjudicatory officer." However, at least one Ninth Circuit opinion has suggested that the scienter requirements under the Model Rules may be broader than those under the Model Code. See United States Dist. Court for the Eastern Dist. of Washington v. Sandlin (9th Cir. 1993) 12 F.3d 861, 867.
8.2:200 False Statements About Judges or Other Legal Officials
Several California cases address the situation in which a lawyer makes a false or disparaging statement regarding a judge. In general, these cases involve statements made in a filed pleading, and the decision generally is grounded in B&PC ¤ 6068(b) which requires a lawyer "[t]o maintain the respect due to the courts of justice and judicial officers."
One of the leading California cases is Ramirez v. State Bar (1980) 28 Cal.3d 402, 169 Cal.Rptr.206, 619 P.2d 399. In Ramirez, a lawyer first in a reply brief filed in the Ninth Circuit Court of Appeals and later in a petition to the United States Supreme Court for a writ of certiorari, accused the members of a state appellate court panel of, inter alia, acting "unlawfully" and "illegally" and being parties to a "theft" because of the panel's reversal of a trial court decision which had been favorable to the lawyer's clients. The State Bar's Disciplinary Board and the Supreme Court found that, at the very least, the lawyer had acted with reckless disregard of the truth and suspended him from practicing law for thirty days and placed him on probation for a year. Moreover, the California Supreme Court found that because the lawyer had acted with reckless disregard for the truth, his statements were not protected by the lawyer's right to free speech under the First Amendment. This finding that reckless disregard for the truth can lead to bar-imposed sanctions indicates that, despite the vague language of B&PC ¤ 6068(b), California courts enforce a standard of conduct substantially similar to the standard found in MR 8.2(a).
Hogan v. State Bar (1951) 36 Cal.2d 807, 228 P.2d 554 is another California case involving unrestrained and defamatory comments regarding a judge. In Hogan, the lawyer in both pleadings and in an "open letter" to the State Bar accused a judge of being petty and corrupt, insinuated prejudice based upon religion, and denigrated the judge's legal education. The California Supreme Court, in upholding the three month suspension imposed by the State Bar's Board of Governors, found that there was no evidence to support the accusations made. Furthermore, the court rejected the arguments that the statements were speech, protected either by the litigation privilege which applies in limited circumstances to assertions made in pleadings or by the right to make fair comment on officials seeking re-election. Instead, the court reasoned, "[t]his proceeding arises out of charges the petitioner violated his duties as an attorney. As such he must answer for his disrespectful demeanor toward the courts and for engaging in offensive personality regardless of whether or not his conduct be considered libelous." Id. at 810-11. It should, however, also be noted that, as in Ramirez, the California Supreme Court found that there was no evidence presented at the underlying disciplinary hearing to justify the accusations leveled by the lawyer.
A list of other California cases in which false and defamatory statements made by lawyers regarding judges led to disciplinary questions can be found in Attorney's Criticism of Judicial Acts as Ground of Disciplinary Action, 12 A.L.R.3d 1408 (1967 and Supp. 1997).
The Ninth Circuit's interpretation of rules prohibiting false statements about judges is also of note. In particular, the Ninth Circuit has interpreted language virtually identical to the language found in MR 8.2(a). United States Dist. Ct. v. Sandlin (9th Cir. 1993) 12 F.3d 861 arose from the federal courts in Washington, where the state has adopted rules of professional conduct which are substantively similar to the MR. In Sandlin, the lawyer argued that under Washington State Rule of Professional Conduct Rule 8.2(a), actual knowledge of the falsity of the statement was required. However, this subjective standard based on the lawyer's knowledge was rejected by the Ninth Circuit which found that under Washington State Rule of Professional Conduct 8.2(a) the standard for determining whether the attorney knows a statement is false or has acted in reckless disregard for the truth is "what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances." Sandlin, 12 F.3d at 867.
A more lenient standard was utilized in Standing Comm. of Discipline of the United States Dist. Ct. for the Central Dist. of California v. Yagman (9th Cir. 1995) 55 F.3d 1430. The Yagman decision was criticized in In the Matter of Palmisano (7th Cir. 1995) 70 F.3d 483, 487, in which a lawyer claimed in a published interview that because a certain federal judge had sanctioned three Jewish lawyers, he believed the judge to be anti-Semitic. The lawyer also claimed in an unpublished portion of the same interview that the judge was "drunk on the bench." Finally, the lawyer in a letter both to the judge and to the publisher of the Almanac of the Federal Judiciary stated:
It is an understatement to characterize the Judge as "the worst judge in the central district." It would be fairer to say that he is ignorant, dishonest, ill-tempered, and a bully, and probably is one of the worst judges in the United States. If television cameras were ever permitted in his courtroom, the other federal judges in the Country would be so embarrassed by this buffoon that they would run for cover.
In addition, in the same letter the lawyer referred to the judge as a "sub-standard human" and a "right-wing fanatic." A three judge panel from the Central District of California found that the lawyer had violated CD CA Rule 2.5.2 which prohibits any conduct which "impugns the integrity of the court." The district court panel and the Ninth Circuit both applied the standard of Sandlin and reasoned that lawyers "may freely voice criticisms supported by reasonable factual basis even if they turn out to be mistaken." Yagman, 55 F.3d at 1438. The court went on to rule that lawyers who make statements impugning the integrity of judges are entitled to certain defamation defenses. In particular, truth is an absolute defense and the expression of an opinion which cannot reasonably be interpreted as an expression of fact is not actionable. Id. The Ninth Circuit also ruled that the burden of proving that the lawyer made a statement which he or she should have reasonably known was false or which was in reckless disregard of the truth rested with the party seeking or imposing disciplinary sanctions. Thus, in Yagman, despite the outrageous nature of the statements made by the lawyer, most of the statements were found to be either expressions of opinion or nothing more than rhetorical hyperbole. Even the statement that the judge had been drunk on the bench was not in this case sanctionable because the Central District's Standing Committee of Discipline had not proven that the accusation was false.
Finally, it should also be noted that false statements which impugn the integrity of the courts in California can, under certain egregious circumstances, lead to the imposition of contempt sanctions against a lawyer. See, e.g., Lamberson v. Superior Court (1907) 151 Cal. 458, 91 P. 100.
8.2:300 Lawyer Candidates for Judicial Office
¥ Primary California References:
CRPC 1-700, Code of Judicial Ethics,
¥ Background References: ABA Model Rule 8.2(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 101:601, ALI-LGL ¤ 174, Wolfram ¤ 17.2
California Constitution Article VI, Section 18(m), provides, "[t]he Supreme Court shall make rules for the conduct of judges both on and off the bench, and for judicial candidates in the conduct of their campaigns. These rules shall be referred to as the Code of Judicial Ethics." The only rules specifically applicable to lawyer candidates for judicial office are found in Canon 5 of the Code of Judicial Ethics (hereinafter "California Canon 5"). See CRPC 1-700; Code of Judicial Ethics, Canon 6, Section E.
As stated in its own preamble, California Canon 5 is based on the premise that judges and candidates for judicial office are entitled to their personal views on political questions and are not required to forego their rights or opinions as citizens. However, California Canon 5 is designed to balance these concerns with the fear that political activity could create the appearance of political impropriety or bias. Accordingly, the political activities of judges and candidates for judicial office in California are to a degree limited by California Canon 5.
California Canon 5, ¤ A bars judges and candidates for judicial office from being leaders or holding any office in a political organization. Section A also bars judges and candidates for political office from publicly endorsing or making speeches on behalf of either political organizations or candidates for nonjudicial offices. Finally, Section A allows judges and candidates for judicial office to make limited political donations but bars them from soliciting funds for political organizations or nonjudicial candidates.
California Canon 5, ¤ B prohibits a judicial candidate either from making statements which would commit or appear to commit the candidate with regards to cases, controversies or issues which could come before the courts or from knowingly making false statements with regards to an opponent.
California Canon 5, ¤ C clarifies the prohibition on political speeches which is found in California Canon 5, ¤ A(2), and specifically grants a judicial candidate the right to make speeches on his or her own behalf or on behalf of another candidate for judicial office.
California Canon 5, ¤ D reiterates that except as provided by California Canon 5, judges, as well as presumably judicial candidates, shall not engage in political activities. However, Section D also makes clear that if the political activity concerns a measure effecting improvement of the law, the legal system or the administration of justice, a judge, and again presumably a judicial candidate, may participate.
While not mentioned in the California Code of Judicial Ethics or in MR 8.2, it should also be recalled that in California a lawyer running for judicial office is still a lawyer, subject to the disciplinary powers of the California Bar. There are several cases in which a lawyer has been disciplined by the State Bar for activities during a campaign for judicial office. See, e.g., In re Rivas (1989) 49 Cal.3d 794, 263 Cal.Rptr.654, 781 P.2d 946 (lawyer disciplined for lying on documents submitted to the registrar of voters); Johnson v. State Bar (1937) 10 Cal.2d 212, 73 P.2d 1191 (same).
8.3:100 Comparative Analysis of CA Rule
California does not have a rule or statute that correlates to MR 8.3.
California does not have a rule or statute that correlates to DR 1-103(A).
8.3:200 Mandatory Duty to Report Serious Misconduct
California lawyers do not have the duty to report the misconduct of other lawyers or judges. In 1987, a state bar subcommittee voted against proposing an adaptation of MR 8.3 to the Supreme Court despite its acknowledgment that "such a rule would be greeted by public approval." 1 State Bar of California, Proposed Amendments to the Rules of Professional Conduct, Proposed Rules and Legislative History," p. 10-11 (July, 1987). The subcommittee objected to adopting a rule that would be "merely cosmetic," based upon an analysis of other states with similar provisions, in that it would not or could not be enforced. Id. Also, some subcommittee members were concerned that a lawyer who violated his or her duty to report misconduct might be subject to discipline greater than the lawyer who committed the underlying offense. Id. Finally, there was a fear that clients would suffer as a result of increased animosity between the parties if the conduct of opposing counsel was reported. Id.
S.D. Op. 1992-2 addresses two hypothetical scenarios. In the first, a lawyer for a defendant learns that the lawyer for the plaintiff has knowingly made false allegations against another co-defendant, which the opinion states would constitute subordination of perjury. Id. In the second scenario, lawyer Y is asked by lawyer X, who has received a $50,000 retainer to represent Client, to serve as co-counsel in pending litigation. Id. Client then dies before giving consent to lawyer Y's representation and before lawyer Y can discuss the case with Client. Lawyer X fails to refund Client's untraceable retainer.
S.D. Op. 1992-2 concludes that in either scenario, a lawyer would not be obligated to report the misconduct. Lawyers choosing to report misconduct may be privileged from defamatory liability under Civ. Code ¤ 47 [see 1.1:510 Advocate's Defamation Privilege, supra], but should be careful not to disclose confidential client information. S.D. Op. 1992-2. Cf., L.A. Op. 1986-440 (while there is no duty to report unethical conduct, lawyers "can and should consider the seriousness of the offense and its potential impact upon the public and profession, and may consistent with the ethical obligations of the [CRPC], report such conduct); S.F. Op. 1977-1 (no duty to report unethical conduct but "moral and ethical considerations aside from the statutory law would seem to dictate such an obligation may be proper."). See also, Chen v. Fleming (2nd Dist. 1983) 147 Cal.App.3d 36, 41, 194 Cal.Rptr. 913 ("[i]nformal complaints received by a bar association, which is empowered by law to initiate disciplinary procedures, are as privileged as statements made during the course of formal disciplinary proceedings.").
8.3:300 Reporting the Serious Misconduct of a Judge
There is no California rule or statute that deals with the issue of a lawyer reporting the serious misconduct of judges and research did not capture any relevant cases or ethics opinions.
8.3:400 Exception Protecting Confidential Information
[See 8.3:200 Mandatory Duty to Report Serious Misconduct, supra].
8.4:100 Comparative Analysis of CA Rule
MR 8.4(a) states that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct. The California standard is substantively similar. CRPC 1-100 gives the State Bar Board of Governors the power to discipline lawyers for a willful breach of any of the CRPC. See also, B&PC ¤ 6077 (providing the same power to the Board of Governors).
MR 8.4(a) also provides that a lawyer must not "knowingly assist or induce another to [violate a Rule of Professional Conduct], or do so through the acts of another." Similarly, California lawyers must not "knowingly assist in, solicit, or induce" any violation of the CRPC or B&PC. See CRPC 1-120.
Under MR 8.4(b), criminal acts that reflect "adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer" are prohibited. Likewise, California lawyers may be disbarred or suspended for felony or misdemeanor convictions involving moral turpitude. B&PC ¤ 6101; [see 0.2:245 Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude, supra].
MR 8.4(c) provides that a lawyer must not engage in conduct "involving dishonesty, fraud, deceit or misrepresentation." Under B&PC ¤ 6106, any act involving "moral turpitude, dishonesty or corruption" is cause for disbarment or suspension, no matter whether the act is committed while acting in the lawyer capacity, or if the act constitutes a felony or misdemeanor.
Finally, MR 8.4 prohibits conduct prejudicial to the "administration of justice," see MR 8.4(d), stating or implying an ability to improperly influence a government agency or official, see MR 8.4(e), or knowingly assisting a judge or judicial officer in judicial misconduct, see MR 8.4(f). The California provisions that correlate most closely to these MR 8.4 subsections are CRPC 5-200 and B&PC ¤ 6068(d). For an in depth analysis of the statutory language of CRPC 5-200 and B&PC ¤ 6068(d) [see 3.3:101 Model Rule Comparison, infra].
DR 1-102 is similar in substance to MR 8.4; accordingly, the relevant California rules and statutes relate to DR 1-102 in much the same way they relate to MR 8.4. [See 8.4:100 Comparative Analysis of California Rule, supra].
8.4:200 Violation of a Rule of Professional Conduct
[See 1.1:300 Malpractice Liability, supra].
8.4:300 Commission of a Crime
[See 0.2:245 Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude, supra].
8.4:400 Dishonesty, Fraud, Deceit and Misrepresentation
[See 1.1:390 Liability When Non-Lawyer Would Be Liable, supra].
8.4:500 Conduct Prejudicial to the Administration of Justice
8.4:600 Implying Ability to Influence Public Officials
A lawyer's suggestion during closing arguments that he sought a change of venue because opposing counsel could influence the judges in the former venue through political contributions constituted misconduct. Las Palmas Associates v. Las Palmas Center Associates (2nd Dist. 1991) 235 Cal.App.3d 1220, 1247, 1 Cal.Rptr.2d 301. However, any resulting prejudice was cured by the trial judge's instruction to the jury that it must disregard the statement. Id.
8.4:700 Assisting Judge or Official in Violation of Duty
[See 3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official, supra].
8.4:800 Discrimination in the Practice of Law
In pertinent part, CRPC 2-400 provides that in the management or operation of a law practice, a lawyer shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability. CRPC 2-400(B). Such discrimination is prohibited in either "hiring, promoting, discharging or otherwise determining the conditions of employment of any person," see CRPC 2-400(B)(1), or "accepting or terminating representation of any client," see CRPC 2-400(B)(2). The State Bar may not initiate a disciplinary investigation or proceeding under CRPC 2-400 unless a non-disciplinary tribunal has "first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred." CRPC 2-400(C).
8.4:900 Threatening Prosecution
¥ Primary California References:
¥ Background References: Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 1:801, 61:601
[See 4.4:220 Threatening Prosecution, supra].
8.5:100 Comparative Analysis of CA Rule
Under MR 8.5(a), members of "this jurisdiction" are subject to the disciplinary authority of "this jurisdiction" regardless of where the lawyer's conduct occurs. A lawyer may be subject to discipline in "this jurisdiction" and another jurisdiction for the same conduct. MR 8.5(a).
In determining choice of law for conduct in connection with a proceeding in a court, the rules of the jurisdiction in which the court sits control unless the rules of the court provide otherwise. MR 8.5(b)(1). For any other conduct, if the lawyer is licensed to practice only in "this jurisdiction," then the choice of law is determined by the rules of "this jurisdiction," see MR 8.5(b)(2)(i). If the lawyer is licensed in "this jurisdiction" and another jurisdiction, then the rules of the jurisdiction in which the lawyer "principally practices" control; provided, that if "particular conduct clearly has its predominant effect" in another jurisdiction where the lawyer is licensed, then that jurisdiction's rules control, see MR 8.5(b)(2)(ii).
CRPC 1-100(D) contains the CRPC's choice of law provisions. First, with respect to members of the California bar, the general rule is that the CRPC governs activities of members in and outside of California. CRPC 1-100(D). However, there is a major exception: the rules do not govern where members lawfully practicing in a jurisdiction outside of California are "specifically required" by the jurisdiction to follow different rules. CRPC 1-100(D). As to lawyers from other jurisdictions who are not members of the California bar, the CRPC governs activities "while engaged in the performance of lawyer functions" in California. [See 8.1:240 Admission Pro Hac Vice, supra, on the requirements for out of state lawyers to practice law in California].
CRPC 1-100(D) is similar to MR 8.5(a) in that theoretically a California bar member practicing in a jurisdiction outside of California could be subject to discipline in the other jurisdiction and in California for the same conduct (unless the jurisdiction "specifically require[s]" that the lawyer follow rules different from the CRPC). See CRPC 1-100(D). The key difference between the rules is that under MR 8.5, the choice of law analysis is driven by the type of lawyer conduct at issue, e.g., whether the conduct is in connection with a court proceeding, see MR 8.5(b)(1) or other conduct, see MR 8.5(b)(2). CRPC 1-100(D) does not make such a distinction.
The DR does not have a rule that correlates with MR 8.5.
8.5:200 Disciplinary Authority
[See 0.2:200 Forms of Lawyer Regulation in California, infra].
8.5:300 Choice of Law
In In re Mortgage & Realty Trust v. Zim Co. (Bankr. C.D. Cal. 1996) 195 B.R. 740, a California bankruptcy court had to determine the law to apply in analyzing the fiduciary duties of a law firm serving as opposing counsel to a REIT, where one of the firm's lawyer's formerly served as a member of the REIT's board of trustees. The lawyer was licensed in both California and the District of Columbia, practicing in the D.C. office of the St. Louis, Missouri based firm. Id. at 745. The REIT sought to have the law firm disqualified on conflict of interest grounds. Id. at 746.
The court noted that under CRPC 1-100(D)(1), because the lawyer was a member of the California bar, his conduct was governed by the CRPC, unless the District of Columbia required that he follow different rules. Id. at 748. However, the court refused to apply this rule, stating that "for the purposes of this decision the Court gives no weight" to the lawyer's California bar membership. Id. at 748. Instead, the court assumed that the lawyer's conduct was governed by the laws of the District of Columbia rather than California. Id. at 748. As for the law firm, the court concluded that CRPC 1-100(D)(2), which states that the CRPC governs "the activities of lawyers while engaged in the performance of lawyer functions" in California, required that the CRPC be used to analyze the firm's fiduciary obligations to the REIT. Id. at 749.