Are You Tired of ETHICAL MISCONDUCT in the LEGAL PROFESSION?
Are You Tired of
LAWYERS WHO LIE?
Here's your chance to
take action.
Citizens of California have
proposed legislation to
hold attorneys accountable
for lying and
misrepresentation in the
practice of law.
California resident or not,
you can help turn the tide
of change in the deteriorating
American legal system
by supporting this legislation.
Frequently Asked Questions:
Question: How can
we possibly change a legal system
that is powerful and resistant
to change?
Answer: Many drastic
changes have been made in our
country with the active
participation of citizens who
care. Remember civil rights?
Fair employment laws? All
had a small start by concerned,
ordinary citizens.
San Francisco legal ethics
professors and attorneys
Richard Zitrin and Carol
Langford tell us:
"If our legal system is to
be saved, members of the
society it serves must play
a major role in its
salvation. This requires
that lawyers and legal
organizations open their
doors to the public, and that
the public have the necessary
interest and fortitude
to walk in." Zitrin,
Richard, and Langford, Carol, The Moral
Compass of the American
Lawyer: Truth, Power, Justice
and Greed)
Question: What Can I Do?
Answer: Send an email
to Assemblyman
Joe Simitian and
the Governor
of California and tell them you are
behind this proposed legislation.
Cut and paste or
write your own!
Subject: Ethics and Lawyers
Message Body: I am
a citizen becoming involved against
unethical legal conduct.
I support the proposed ethics
legislation in Representative
Joe Simitian's (D-Palo
Alto) "THERE OUGHT TO BE
A LAW CONTEST" prohibiting
lawyers from misrepresenting
facts and lying in the
practice of law.
Question: I don't live
in California, how can this
help?
Answer: This proposed
legislation needs your support -
no matter where you live!
We want EVERYONE to tell
California what they think.
Question: How can we possibly
influence the powerful
State Bar?
Answer: There
are many attorneys and
judges who are frustrated
with the greed and lack of
morality in their own profession.
However, in order to
overcome inertia, they need
citizens like us to take
the initiative and insist
on enforced, ethical
conduct.
We need your help. Send
this page to other concerned
citizens and SEND EMAILS
to Assemblyman Joe Simitian
and Governor Arnold Schwarzenegger..(no
attachments)
PROPOSED LEGISLATION
(Background, rationale, wording of the law and supporters)
Researched, written and presented by Palo Alto residents:
Cindy Nelson cindynelson1@sbcglobal.net
and
Ann Bradley author, DIVORCE:
THE REAL TRUTH, THE HIDDEN DANGERS
panet@psnw.com
What The Bill Would Do:
The bill would provide for a new California law
prohibiting attorneys from lying or misrepresenting
facts in the practice of law. It would provide for
required enforcement by the judiciary for attorneys
who violate the law, slowing a period of rapid ethical
decline that is destroying the American system of
"justice for all".
No other business or profession in the State of
California is routinely allowed to lie in order to
advocate for their customer, their product, or their
service. Ethical and truthful behavior in the practice
of law is necessary to preserve public belief in the
system of justice, as well as to return our state to a
court system that actually is capable of delivering
fair and equal justice.
To accomplish the enforcement, the office of the Chief
Trial Counsel, currently charged with enforcing the
attorney code of ethics, must be separated from the
California State Bar Association, and moved under the
Supreme Court, where it must be granted a "stable and
adequate source of funding, be free from political
influence and possess stability with respect to human
resources." (This has been recommended by the American
Bar Association already) (Calif. Report on the Lawyer Regulation System,
June
2001, Sponsored by American Bar Association Standing Committee on
Professional Discipline)
Rather than continuing to expect the "fox" to guard
the hen house, we propose that the office of the Chief
Trial Council, who investigates and disciplines
attorneys, would include qualified non lawyers,
nominated by the public and the state, who are free of
conflict of interest, to serve on all attorney
investigations and disciplinary actions.
The Problem:
Lawyers Lie Routinely in Court, Escalating Conflict
and Damages
The code of conduct of the California Bar Association
prohibits attorneys from misrepresenting facts in
court. Members of the Bar are sworn to uphold this
code if they are to keep their license to practice law
in the state. Because the code is ignored by both
judges and the Bar Association (both organizations,
interestingly, are made up of lawyers), it is widely
flouted, and those who expect compliance are told that
"everybody does it", and "That's the way the system
works". The reason for the lack of enforcement is
complex, but the most common justification is that it
would interfere with an attorney's legal
responsibility to "zealously advocate" for their
client. The epidemic of lying escalates conflict in an
already adversarial system, draws out litigation
creating unnecessary inflation of court costs, and
effectively disposes of "justice", replacing it with
gamesmanship and "spin".
Flouted Laws Undermine Respect for the Law
There are several problems with widely flouted laws.
First, they undermine a community's respect for the
law. The legal system in California is under fire, and
much of the ire is directed at attorneys for dishonest
and corrupt actions, and the jaded acceptance of the
lack of any semblance of truth telling in a courtroom
setting. The misrepresentation becomes so rampant that
it is difficult for the many honest lawyers to
practice in such a system. Ethical lawyers are hard
pressed to win their case in such as system unless
they rely on similar aggressive adversarial tactics.
Misrepresentation of the facts has become an
expectation, and judges are indifferent when presented
with evidence of lawyer misconduct.
Lawyers Who Lie Are Not Disciplined
The California Bar Association, tasked with enforcing
their code of conduct and disciplining their own
members, has yet to disbar an attorney for lying, even
repeatedly, even when their conduct results in
significant damage to a party.
Support for the Initiative:
PRI: Professional Reform Initiative, Sponsored by the
National Conference of Bar Presidents
Attorneys themselves recognize that lying and similar
unethical behavior is a significant problem of their
profession, which is contributing to the downfall of
the public trust in the justice system:
Colorado Bar President, Dale Harris: (originally published in The Colorado
Lawyer, 2000)
"... I was one of hundreds of bar association officers
attending a program sponsored by the National Conference of Bar Presidents
("NCBP") in conjunction with the annual meeting of the American
Bar Association. The program was titled "Tough Talk,
Tough Solutions - Re. establishing Lawyer's Value."
The message was sobering: that we are stewards of a
profession in serious trouble, a profession suffering
a significant erosion of public trust and confidence
that must be stemmed and reversed if we hope to remain
relevant to the public in the 21st century."
Mark Perlmutter, Attorney and Author, Why Lawyers (And the Rest
of Us) Lie
"...one of the systemic influences on lying in the legal
system is that lying is a norm. It's an insidious
development. We lawyers start by justifying it in
circumstances in which 'everybody does it'. Then, once
on the slippery slope of justification, we find it
easy to rationalize lying in more and more
circumstances. Eventually, it becomes so commonplace
that we're now unconscious of it."
Richard Zitrin and Carol M. Langford, authors of The Moral Compass of the
American Lawyer:
Truth, Power, Justice and Greed
"More than ethics rules must change. Courts control
the cases before them, and each has its own rules.
Most of these rules could more clearly define
unacceptable behavior, such as withholding information
from the other side on frivolous or obtuse grounds.
These rules have teeth when courts are willing to
exercise their power to punish ethics violations as
they occur, not just with fines that many firms treat
as the cost of doing business, but with real
deterrence: "issues sanctions" that can directly
affect the outcome of the case, a cost few clients
would want to pay."
On saving the legal system, Zitrin and Langford add:
"If our legal system is to be saved, members of the
society it serves must play a major role in its
salvation. This requires that lawyers and legal
organizations open their doors to the public, and that
the public have the necessary interest and fortitude
to walk in. Lawyers have a monopoly on the practice of
law, but not on intelligence, savvy, or, despite the
claims of some, an understanding of sophisticated
ethics issues. Public input provides two vital points
of view often missing when lawyers evaluate their own
conduct: the client's perspective and society's."
and
"Members of the public should serve on all important
professional groups that deal with the behavior of
lawyers: ethics committees, which draft rules and
opinions; disciplinary boards; judicial selection
commissions; and the ABA, ALI, and other trade
association committees that set behavior guidelines. A
public body similar to a civil grand jury could be set
up in each state to monitor a broad spectrum of these
activities, as well as the state's disciplinary
system. The payoffs are access to the system and the
opportunity to play an important role."
Background
Both of the writers of this document have personal
experiences in court, witnessing the damages that
lying lawyers and indifferent judges create. We have
seen children torn from their families by lies told by
lawyers, and non lawyer adults financially ruined by
legal fees required to defend themselves against lies
told by actively practicing California attorneys.
The destruction of functional family units through malicious tactics has
long
term repercussions. The expense to society of creating impoverished,
disaffected, discouraged and downtrodden people is enormous.
In an address at Santa Clara University's Markkula
Center Ethics Center, Deborah Rhode, Stanford Law
Professor and author of In the Interests of Justice:
Reforming the Legal Profession, (Oxford University
Press, 2000), states:
"Many criticisms of professional conduct and
regulatory processes have a strong basis in fact. On
matters such as excessive fees, unresponsive
disciplinary structures, and overly broad protections
of the professional monopoly, the public does not
appear ambivalent, and its concerns do not seem
unwarranted."
Proposed Law:
Lawyers must adhere to the laws of the society at
large, and of the courtroom.
The proposed new law, separate from the Bar
Association's code of conduct, would require that
attorneys, as officers of the court, agree to
represent the facts faithfully and honestly in every
aspect of their legal practice. Further, the judiciary
must be charged with mandatory and meaningful
discipline for any lawyer who misrepresents facts in
their practice.
Proposed Language:
Attorneys are required to only use means as are
consistent with the truth, and never behave falsely,
whether by statement or other artifice.
Enforcement and Penalties
"Three strikes and you're out" for felons provides a
model for attorneys who are found to be
misrepresenting the truth in the practice of law. The
first time they are caught they must be sanctioned
with "issues sanctions" which a judge must consider in
his or her ultimate decision on the case's merits. The
second time the first penalty would again apply, and
they would also be suspended from practice for one
year. The third time they are found to be
misrepresenting facts they are disbarred from
practicing law.
The process would require that the judiciary take
significant new responsibility for fact-finding and
honesty, and that they proactively sanction
misconduct, and submit it to the disciplinary
organization for long-term reporting and enforcement.
While it might at first add a burdensome task to a
judge's already crowded docket, the now dominant
bad apples, the lawyers who routinely rely on
misrepresentation, would necessarily either learn a
new way to practice or find a new career. What would
remain are ethical attorneys who can both advocate for
their clients and justice.
Who Would Support the Bill?
The Bar Association appears to support ethical reform
of their practice, but we would not rely on their
support as a whole. There is too much entrenched
benefit for those who practice unethically at this
time. That is not to say that there are no attorneys
who would support the bill. Frankly, we believe that
there are a large number of attorneys who would prefer
to practice in an environment of ethical advocacy, and
could help ferret out these supporters.
The judiciary could be an advocate for the bill, but
they would be wary of change, as well as the need to
take more time in each case to sort out facts from
fiction. In the long term, the judiciary would benefit
from more efficient and fair proceedings.
We believe that this bill would find widespread
grassroots citizen support, because many have in fact
suffered or know someone who has. In addition, most
citizens would not support the "zealous advocacy"
justification offered by most attorneys who benefit
from the current legal system dynamics. It simply does
not make any sense to exempt the legal system from
behavioral laws that the rest of society must adhere
to in the practice of their businesses
(State Bar of California
v. Superior Court (1929) 207 Cal. 323, 331 [278 P. 432]; see also
Johnson v. State Bar (1935)
4 Cal.2d 744, 758 [52 P.2d 928].) "Attorneys and counselors
at law have long been known
as 'officers of the court,'... Thus it is that the profession and
practice of the law, ....
is essentially and more largely a matter of public interest and
concern, not only from the
viewpoint of its relation to administration of civil and criminal
law, but also from that
of the contacts of its membership with the constituent
membership of society at
large, whose interest it is to be safeguarded against the
ignorances or evil dispositions
of those who may be masquerading beneath the cloak of
the legal and supposedly
learned and upright profession. It is to be noted also that from
the body of the legal profession
it is required, by both the constitution and statutory law
of this and most other states,
the justices and judges of all courts of record and of
certain other subordinate
tribunals must be chosen. It is for each and all of these reasons
that the membership, character
and conduct of those entering and engaging in the legal
profession have long been
regarded as the proper subject of legislative regulation and
control . . . ."