Further to Jaenam Coes letter (July) suggesting scrambling bar
numbers to avoid age bias, I offer the following refinement: Why not have the State Bar
supply official bags which we can all wear over our heads when making court appearances?
Perhaps body bags to avoid gender and body-mass bias! Better yet, why not work to
eliminate bias itself rather than the basis for such bias the wonderful variations
in age, gender and looks that distinguish us.
The more things change . . .
Nothing changes at the State Bar. Now we are going to spend $40,000
to evaluate the MCLE program. Would not a simple form in the Bar Journal do
the same thing, for $40,000 less? The form could be faxed, mailed or e-mailed.
On the other hand, it is pretty well known most of the members have
no use for the program.
. . . The more they stay the same
It is not surprising that David Heilbron of the State Bar MCLE
commission has already determined the goal of the study: The value of education is
recognized. How best to achieve it is the question. The supposed objectivity of this
commission was obvious from the beginning. Abolishing MCLE is no longer even on the menu.
What is laughable is that the bar in its unique fashion
will spend $40,000 to survey the MCLE opinions of 600 attorneys. Nearly $67 each. Why?
Because Mr. Heilbron says that they still dont know what California lawyers think
Never mind the countless letters to the Bar Journal over the years
condemning MCLE and the whole mindset behind it. Never mind the results reported in the
July 1999 issue that almost 67 percent of 4,172 attorneys responding to a poll were
against MCLE. 4,172 versus 600. Probably the bar is not aware of these facts because it
never cares about its members opinions.
Maybe the State Bar of Mars doesnt know what its members think
of MCLE, but any sentient being in California does.
Dump bias and substance abuse
I would offer my input that MCLE requirements delete the bias and
substance abuse subjects. These are not law-related and in my opinion not a province for
the State Bar any more than parenting skills would be of interest to the bar. It seems
that this requirement is intended to force practitioners to learn what is
politically correct at this moment.
Lower the MCLE fee
I read, enjoy and appreciate the CBJ. I especially appreciated the
response to one letter wherein the cost/benefit of the CBJ was set forth.
However, I do believe that the processing fee for the MCLE self-study
material is excessive. The fee should be more like $10 than $20. Perhaps reducing the fee
would encourage more to participate. It seems that the maximum possible participation
would be desirable and be beneficial to more members.
Another bleeding heart failure in discipline
The March discipline report is evidence that the bleeding hearts of
the State Bar have failed once more in the performance of their obligations to members of
the bar and the public.
The attorney in question was disbarred in 1988 for stealing more than
$260,000 in trust funds used to pay gambling debts. He sought reinstatement three years
later. A State Bar Court judge recommended reinstatement because his sustained
exemplary conduct over an extended period of time has demonstrated successful
rehabilitation. Seriously, is three years sufficient time to prove rehabilitation?
Since he was not a lawyer for this extended period of time, how does his
inability to steal trust funds demonstrate successful rehabilitation?
Obviously, he totally fooled his psychiatrist who said that the man
had overcome a gambling problem and so no longer had the urge to gamble. The
latest round of theft ($250,000) from client trust accounts was to pay his gambling debts.
Of course we all know the value of testimony from paid experts, particularly those in the
psychiatric field who cannot base an opinion on scientific fact.
So the bar gets another black eye and another members clients
are robbed by their trusted attorney. For the millions of dollars spent on our
disciplinary system, we and the public are entitled to more effective discipline.
Proof of service statute needs amending
Like so many busy lawyers, I work weekends and times when there is no
secretarial staff, and having quite an investment portfolio I have more than my share of
civil disputes relative to tenants, vendors, government agencies, buyers, sellers. And
because the sums are usually quite modest, I handle them myself as a matter of
But as a party, I am barred from executing proof of service, CCP
1013a requiring signature of a nonparty. I find this requirement to be an unnecessary
imposition on the average civil litigant and a paean to larger firms who have everything
in the office handled by secretarial staff, and totally inconsistent with federal civil
procedures and the practices of many of our sister states.
Service of a summons, or Order to Show Cause, creates jurisdiction or
exposure to contempt. Sending of notices, motions, address changes, does not. It is high
time the bar urge amendment of CCP 1013a, and related statutes, to confirm with FRCP 5. It
is demeaning for California counsel to be explaining the signing under penalty of perjury
to a custodial employee, or neighbor, or whomever is available, at the time of mailing
copies of a routine pleading to adverse counsel in a case wherein the attorney is also a
Burned by an unpublished opinion?
The Committee for the Rule of Law requests members of the bar to
report all incidents of abuse of unpublished opinions through its website
www.Nonpublication.com. The website is a meeting place and library for the committee.
Currently, 93 percent of California Courts of Appeal decisions are
marked by California appellate judges that author them Not To Be Published In the
Official Reports. Rule 977 makes this vast body of law illegal to cite in any court
The no citation rule began in 1974 as a minor practice, but was not
challenged until this year. The rules, by their express terms, do not require any opinion,
no matter how significant, to be published or citable.
Recently the 4th District reinterpreted Rule 976 as mandating
appellate courts to publish all opinions that state new law or modify existing law.
Schmier v. Supreme Court of California. Presumably, this includes all novel law previously
used to resolve cases in the shadow of the no citation rule.
The Committee for the Rule of Law believes the constitutional promise
of equal protection cannot be maintained in the absence of a knowable record of what the
courts have done in similar circumstances, and the rule of law cannot be invoked to
control the caprice of the rule of men if judges are allowed to make novel rules of
ephemeral application while disregarding future consequences of stare decisis.
In addition, the committee seeks answers to other issues raised by
Californias nonpublication, no-citation scheme.
Are no citation rules consistent with freedom of speech or the right
to petition government?
Can the people govern themselves if the manner in which its laws are
applied is not reported back to them for correction?
Can a criminal defendant be prevented from informing a court that an
appellate court decision exists that would exonerate?
How can individuals be presumed to know the law if court decisions
are not published?
Of what protection to the individual is the equal protection clause
if courts can act against one without threatening others similarly situated?
Who corrects error of the appellate court contained in unpublished
The extent of deviance from existing law in unpublished opinions
cannot possibly be determined without the help of the entire bar. All incidents of abuse
or deviance in unpublished opinions should be reported to info@www.Nonpublication.com.
Please include contact information, case name, case number, court, author and opposing
counsel, and a brief statement of the error or new law used to govern the case.
Kenneth J. Schmier
California Bar Journal invites its readers to send letters on any topic. All
letters must include full name with a daytime telephone number and complete address. All
letters are subject to editing, and no anonymous letters will be printed. Send letters to
Editor, Califor-nia Bar Journal, 180 Howard St., San Francis-co, CA 94105-1639; fax to
415/538-2247; or e-mail: firstname.lastname@example.org.