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?
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
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
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
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.
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
Edward B. Batista
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
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
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
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
Kristin N. Casey