California Bar Journal
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How to tell the rat race is getting more competitive

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Behind the scenes with a spin doctor...Diversity is bliss

Further to Jaenam Coe’s 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.

Thomas Bliss
Los Angeles

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 don’t know what California lawyers think about MCLE.

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 doesn’t know what its members think of MCLE, but any sentient being in California does.

Mark Leinwand
Agoura Hills

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.

George Robison

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 member’s 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 administrative convenience.

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 party.

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 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 in California.

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 California’s 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 opinions?

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 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: