California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - NOVEMBER 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - November 2001
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News / News Briefs
Two new judges named to bar court; Stovitz to preside
New protections for consumers
Court approves disclosure of some private disciplines
Board member Erica Yew named to Santa Clara bench
40 receive Foundation scholarships
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Trials Digest
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Opinion
From the President - Intentional UPL should be a felony
International law in a post-Sept. 11 world
Lawyers' response: First, do no harm
Delicate balance between liberty and security
Con artists single out immigrants
Letters to the Editor
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MCLE Self-Study
Restructuring a bankrupt global company
Self-Assessment Test
MCLE Calendar of Events
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - New decision may subject lawyers to suits
Trust fund scam leads to summary disbarment
Attorney Discipline

OPINION

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LETTERS

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Forget about reciprocity

Under no circumstances should attorneys licensed to practice law in other states be permitted to practice law in California unless the states of those attorneys' places of business reciprocate and permit California licensed attorneys to practice law in their states in accordance with the same guidelines. Failure to require reciprocal rights will place California licensed attorneys at a gross competitive disadvantage against their out-of-state peers.

I appreciate that the chief justice may have stated that no particular constituency was intended to be represented in regard to making this proposal. However, it is well known that the single largest driver for this proposal is in-house counsel, who have been lobbying for years for this change. It thus comes as no surprise that in-house counsel are the first category selected for MJP.

There is no question that MJP status would benefit the clients of in-house counsel. But this change will not benefit California licensed attorneys. Without reciprocity, it will harm them. At worst, it makes the least difficult state bar entrance requirements the lowest common denominator for lawyer practice in California, and at the least, it will drive jobs out of state.

Law practice is a difficult business to be in these days. I do not appreciate my state bar taking steps to make it easier for out-of-state lawyers (who did not take the grueling examination I passed to become licensed, and who are not required, as I am, to complete mandatory continuing legal education) to practice in California and take business away from California licensed attorneys, without a reciprocal privilege being extended to members of the California bar association.

Let's make the playing field level, shall we?

Terence Kilpatrick
Sacramento

Setting the record straight

In my annual review of the work of the California Supreme Court (California Lawyer, July 2001), I invited readers to examine Justice Brennan's ringing dissent in McCleskey v. Kemp (1987) 481 U.S. 279, 343-44, to assess whether it deserved description as a "low point" in Justice Janice R. Brown's majority opinion in Hi-Voltage Wire Works Inc. v. City of San Jose (200) 24 Cal.4th 537, 545. In his own analysis of the past year's decisions of the California Supreme Court, Professor J. Clark Kelso condemns my objections to Justice Brown's opinion as an example of critics "so disappointed with the passage and consequences of Proposition 209 and the result in Hi-Voltage that they seem unable to give the opinion a fair or even accurate reading." (September Bar Journal.)

To the contrary, the disappointment I sought to express was with Justice Brown's rhetoric, not her result. I would contend that Justice Brown did not present a fair or accurate reading of the supporters of affirmative action whom she cited in the court's opinion.

Justice Brown cited Justice Brennan's McCleskey dissent and the concurring opinion of Justice Powell in Fullilove v. Klutznick (1980) 448 U.S. 448, 516, for the proposition that the involvement of the courts "in articulating a coherent vision of the civil rights guaranteed by our constitution has not been without its low points." Both citations were introduced with "See," suggesting the proposition follows from the cited authority by an inferential step. I concluded that the inference she suggested was that these opinions were themselves examples of the "low points," because the vision they articulated was strongly supportive of the principles of affirmative action to correct the injustices of the past, which Justice Brown rejected.

Professor Kelso suggests the opinions were cited because Justices Brennan and Powell also suggested that courts had failed to "articulate a coherent vision." While both opinions mentioned Dred Scott and Plessy v. Ferguson, they were presented in the context of passionate arguments for continued government efforts to correct the discrimination of the past, not a critique of the ongoing judicial struggle to articulate coherent visions.

While reasonable minds might differ on the implications of an asserted attempt to enlist Justices Brennan and Powell to support Justice Brown's analysis, she clearly crossed the line when she quoted former President Jimmy Carter, a prominent supporter of affirmative action, as articulating the "principle" she says the electorate desired to restore by enacting Proposition 209. She quotes Carter's 1979 Law Day speech as a rousing rejection of affirmative action. In context, however, he was saying the precise opposite. Carter was hardly espousing the "principle" of Proposition 209, that regardless of past discrimination, we must apply the same objective standards without regard to race or color in making appointments or awarding contracts. He was criticizing that "principle" as a perpetuation of the discrimination of the past. Unfortunately, Justice Brown's opinion should itself be counted as a "low point" in judicial efforts to articulate a "coherent vision." It articulates a lie.

Gerald F. Uelmen
Professor of Law
Santa Clara University School of Law

No record means no record

I write prompted by the recent case, Mack v. State Bar, that indicated the bar could publicize some private reprovals on the web site.

It has long annoyed and irritated me that the State Bar web site data on me includes: "This member has no public record of discipline." In fact, I have had no discipline, public or private. The posted statement (and the same information I assume is also given out by the bar to telephone callers) has always created the impression that I have been or could have been privately disciplined. It seems only fair, equitable and accurate that members who have no record of discipline be fairly and accurately characterized as: "This member has no record of discipline."

The State Bar owes its members and the public the right to complete, truthful and accurate information on members. This is not accomplished by the current statement that implies an always-in-good-standing member may have been privately disciplined.

Erwin F. Fredrich
San Francisco

Judicial infamy

Leonard R. Lamensdorf's letter in the September issue makes the remarkable claim that the U.S. Supreme Court did not decide the presidential election. What else could one call the court's action of stopping legal votes from being counted while their candidate was clinging to a razor-thin lead?

But the worst tragedy is that they did so disingenuously and illegally. In a recent Newsweek article, dissenting Justice Ruth Bader Ginsburg complained that the majority's decision in Bush v. Gore applied the Equal Protection Clause "in a way that would de-legitimize virtually every election in American history."

She was expressing the fact that the Supreme Court had never placed such requirements on vote counting before. And by explicitly stating that their opinion is not a binding precedent for use in future cases, the majority indicated that they would never do so again.

Could there be clearer proof that they violated the law in order to replace the will of the people and install their man in the presidency?  By hijacking the presidential election and defiling the Supreme Court's reputation of being politically neutral, the majority "justices" deserve a prominent place in the annals of judicial infamy.

Joseph C. Sommer
Columbus, Ohio

An intelligent challenge

Erwin Chemerinsky provides intelligent, critical analysis of U.S. Supreme Court jurisprudence. Those like Mr. Skalmowski and Mr. Thacker (October letters) who prefer "balanced" analysis that "dispassionately" accepts the decisions of the Rehnquist Court have plenty available elsewhere. Thank you, CBJ, for providing readers with an informed voice that challenges the conservative judicial status quo.

Jim Racobs
Carson City, Nev.

The truth hurts

Those who criticize Chemerinsky's views in the October 2001 "Letters" section need to understand that if his comments appear harsh and unfair, it's only because he's reporting accurately. The truth hurts. Apples are apples and oranges are oranges; it seems his critics would prefer the word "orapple" to describe an apple in a way that's not unfair to oranges. Since when does accuracy unfairly prejudice inaccuracy?

Also, when Chemerinsky's critics blast him for saying that Souter, Stevens, Ginsburg and Breyer are moderates, they fail to see that indeed, in the grand scheme of Constitutional jurisprudence, they are moderates (with the exception of maybe Stevens). Who wouldn't look like a flaming liberal next to Rehnquist, Scalia and Thomas?

Looking at both issues above it's clear that Chemerisky's critcs suffer from a lack of perspective, i.e., they've lost sight of where particular analytical "objects" lie on the grander "contextual map" . . . alas, the bane of rigorous thinkers everywhere.

Edward B. Batista
Costa Mesa

Political hacks

I want to thank you for printing the articles by Erwin Chemerinsky. His is the lucid, rational voice needed to expose the corrupt political hacks who constitute the Republican majority on the Supreme Court.

Terry D. Oehler
Oakland

A gift, not a duty

For an attorney, time is money. I have donated over 100 hours pro bono this year, i.e. about 5 percent of my annual earning capacity; these donated hours are not tax deductible. I thought I was being generous. But no, the chief justice writes (October) that donating our time/ money is no more than our duty as lawyers.

Bearing in mind that most lawyers work in the private sector - no job security, no guaranteed salary, no state pension - in stark contrast with the judiciary, I have a question: do judges likewise have a duty to donate a percentage of their salaries to pro bono work? After all, if lawyers are officers of the court, as the CJ says in justification of his pro bono argument, even more so are judges.

Or rather, wouldn't it be preferable to cease this patronizing talk of duty, bearing in mind the constitutional prohibition against forced labor, and rely instead on the natural desire of some people to give charitably?

Charles B. Parselle
Sherman Oaks

Give the solos some help

It becomes very clear each year that I practice law as a solo practitioner that "my" State Bar is not an organization which is there to help me. It is huge, it consumes great amounts of money in the form of required dues and it is unresponsive and non-protective of its members.

When I read the Bar Journal, very little is offered addressing the concerns or needs or interests of small practitioners. It is clear that it's near impossible to speak with anyone in authority at the bar.

The bar has long ignored the threat, especially to small practitioners, of the unlawful practice of law by paralegals.

Very little that the bar does speaks to small practitioners. The best thing the bar does is discipline dirty attorneys. Perhaps our dues should be scaled back to cover only this important duty.

Kristin N. Casey
St. Helena