California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2002
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - March 2002
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News / News Briefs
Midyear meeting will focus on fairness
E-briefs offer bar updates
Three strikes supporter has a change of heart, now wants the law restricted
ABA seeks nominations for three awards
Rule change proposed to protect government whistleblowers
More pamphlets added, translated
Innovation garners awards for 11 courts
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Trials Digest
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Public Comment
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Opinion
From the President - New era of bar-conference cooperation
Conference of Delegates: A valuable ally
PG&E's plan: A power play
Letters to the Editor
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You Need to Know
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Discipline
Ethics Byte - Twilight zone cases can make practice tricky
Former deputy DA, convicted of grand theft, is suspended
Attorney Discipline
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MCLE Self-Study
At tax time, modify debt with caution
Self-Assessment Test
MCLE Calendar of Events

OPINION

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LETTERS

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Why bother?

I must strenuously object to what appears to be a movement toward relaxing the control over the practice of law in California. The logic behind the present proposal escapes me. A corporate in-house lawyer need not be licensed in California simply because the only one he can hurt is his client? Huh?

Does the same logic apply to legal service practitioners: the only potential victims are the poor? This mirrors the trend toward the dumbing down of the state bar exam. Passing this exam on the first go was one of the proudest achievements of my life. Now we're going to make it easy enough for Joe Cheatem from nowhere to pass? Why did I bother?

John M. Kaman
Paris

Far out AND dizzying

A Supreme Court appointed-task force concluded it would be OK to allow out of state lawyers (and quoting President Karen Nobumoto) "(1) to be hired and practice law as 'in house counsel' who provide out-of-court services exclusively for a single, full-time business that doesn't provide legal services to a third party, and (2) to permit public interest lawyers providing legal services to indigents on an interim basis before taking the bar exam."

Although avowedly using great caution, the plan opens the door for more "sweeping measures" accommodating a "global marketplace brought on by tremendous advances in technology and multinational commerce" with "lawyers leading the way in corporate expansion throughout the world," says our president. A dizzying thought!

I can't hack it. California is the "happy hunting ground;" the "promised land;" the Elysium of the U.S.; the place with gravitational attraction. People can't wait to migrate here, come for a short visit, spend their lives here. We're already overcrowded with immigrants. We certainly don't need out of state lawyers for any reason.

California already has plenty of good lawyers available for in-house counsel duties and for indigents. Besides taking care of our own, regulation of house counsel and maintenance of their high standards under our bar rules is imperative. Let's back off this far-out concept and get on with the business needs of California lawyers.

Kneeland H. Lobner
Sacramento

Why admit more lawyers?

As for the idea of admitting out-of-state attorneys to practice without even taking the attorney exam, I think it is a bad idea. First of all, are 100 percent of the out-of-state attorneys passing the exam? I don't think so. Why does the bar want these people admitted? For the dues and MCLE money? Maybe.

I understand the need to allow in-house counsel some flexibility; California can do what Florida does by allowing attorneys in good standing in another jurisdiction to practice only as in-house counsel by just registering with the Florida bar. Florida does not have an attorney exam.

If California does decide to allow these attorneys to practice without taking an exam, I would hope it will lobby other states to admit California attorneys on the same basis. I went to a school that is State Bar-approved and most states will not even allow me to take their exam, notwithstanding that I have been admitted in California for over 20 years and in Maryland for almost 10 years.

Frances Hirschmann Mullane
Jupiter, Fla.

Not as lucky as some

Kristina Horton Flaherty paints a rosy picture of women attorneys like Belynda Reck, who has kids and "feels she has been treated well by her employers." Some women don't have it so easy.

In 1996, I was a defense attorney for an insurance company in its in-house law firm. The litigation manager decided that I should stop my infertility treatments because he required me to "account for every minute of my time from 8 a.m. to 6 p.m." And, yes, he did say that he owned me.

After I alleged gender discrimination, the gymnastics that manager went through to make himself look like a dedicated family man resulted in the in-house counsel leaving, the law firm closing, the claims department moving, and the company stock tanking. That insurance company now has one office in all of California - in Fresno. The company ended up paying for three attorneys to litigate my cases while I negotiated a hefty separation agreement. But I have been black-balled ever since. I worked 10 years as a defense attorney, but after that fiasco, I could not even get an interview.

Now, I am one of those people you wrote about in your December issue. I hung up my own shingle. I had to become a sole practitioner if I was going to continue practicing law. As Michael Berger said in his letter, it is not always the best and brightest who end up at the big firms. It is not the "disparate dregs" who go solo. It's women like me, who can't be owned.

M. Hollie Rutkowski
Sacramento

Justice run amok

I've always known the legal system has its pathologies, but now I'm convinced it has gone bonkers. 

A discipline report in February relates the case of an attorney who pled guilty to insider trading (netting an astronomical $14,000 profit), was fined $10,000 on top of a $29,000 payment to the SEC, then sentenced to three years probation plus a month at a halfway house, followed by three months of electronically monitored home detention and ordered to give speeches to other attorneys. As if this were not enough, the State Bar placed him on interim suspension and in jeopardy of summary disbarment. We're led to believe he got off easy; after all, the prosecutors asked for a four-month prison term.

Talk  about prosecutorial, judicial and administrative overkill. The conduct involved is illegal but pales in comparison with the manipulation that is rampant in the financial community with little or no adverse consequences. Surely, some perspective is in order. If the destruction of a reputable attorney's entire career is a fitting punishment in this case, what should be done with the Enron executives if they are convicted of artificial inflation of Enron stock (netting them hundreds of millions)?  To equate the two situations and punishment, perhaps being drawn and quartered, followed by beheading and then summary execution?   

Linda Mok
Los Angeles

Leave the bar exam alone. . .

Adoption of the suggestion that the California bar examination be reduced from three days to two can only result in a decline in the standard of practice.

I have passed the bar examination in two states, California and Missouri. The examination here was the longer and the more difficult one. I found the standard of practice higher in this state.

Probably the best argument that the California examination is not too difficult is to look about and note all the dumb lawyers you know who have passed it.

Jerome F. Downs
San Francisco

. . . Make it two days

It was with some consternation that I read the article in the January issue regarding the proposed change of a two-day bar exam. It is hard to understand the thinking of board members who think that making a two-day bar exam would somehow result in the "dumbing down" of the exam. All one has to do to refute this argument is to look in the back pages of this newspaper to read about all those successful candidates who have been disbarred or suspended or otherwise disciplined for their actions as attorneys. All the names mentioned in these obituary pages have passed the bar. How will making the bar exam a two-day exam make this situation any worse?

The comments of former Attorney General Van de Kamp are especially disturbing. The article quoted him as stating words to the effect that "if I took a three-day exam, by God, everyone else will." This mentality does not address the manner in which the procedures for obtaining a law license may be improved and does nothing to improve the quality of lawyering in this state. Making a two-day bar exam will open the profession to more individuals. He is apparently more concerned with entrenchment and not in bringing California in conformity with the rest of the United States.

James Kalomiris
Fresno