Mixed views on permanent disbarment

Exit with no return

Add my voice to that of Wendy Borcherdt (August). I too am appalled at the necessity of having to disbar four attorneys for the second time. They should have never been allowed a second chance. Do leopards change their spots?

I am now in my 38th year as an attorney. I have never taken an ethics class or any ethics tests. Gee whiz, how have I been able to make it all these years without being disciplined? There are some concepts that should be drummed into every prospective attorney’s head:

You are being given entrée into a privileged and prospectively lucrative profession.

Even though you can now advertise like any other tradesmen, you still have duties beyond that of a butcher, baker or candlestick maker.

By virtue of being admitted to the bar, you should be and are held to a higher standard of conduct than other people, both professional and personal. You cannot lie, cheat and steal; drive your car while under the influence of drugs/alcohol or abuse your spouse and children. You must pay your child support. You cannot supplement your income by selling drugs. You must file income tax returns and pay your taxes.

I discount the viewpoint espoused by David Cameron Carr because he simply represents the dregs of the California bar. For all these years, I have marveled at the stories reported under discipline. How could these people have invested the time, energy and money it takes to become a member of the bar and then throw it away for so little? Being a lawyer is an honor and a privilege. Failure to live up to this higher standard should be considered an exit visa with no possibility of return.

Stephen A. Derkum
Twain Harte

The root of the problem

I must take issue with Wendy Borcherdt’s article bemoaning the public’s disillusionment with lawyers and blaming our lack of a permanent disbarment procedure for this. The fact of the matter is that by and large the public would probably be happy if all lawyers were disbarred. The problem is too fundamental to be addressed by more thorough self-policing.

For completely understandable reasons, the public at large does not draw distinctions between the sleaze practiced by “bad apples” and the abstruse trickery and incomprehensible jargon that is completely ethical and often considered brilliant by other members of our profession. Insight into how outsiders see our way of doing things is not a valued trait within our profession.

Furthermore, in the last few decades, our legal system has gradually been transformed into a business obsessively fixated on (a) money and (b) punishment. Our system tends to reward and reinforce behaviors and states of mind that are the antithesis of good mental health. This is a systemic problem and cannot be addressed simply by pro bono programs and similar remedies. These are some of the main reasons that the public does not have warm feelings toward us.

James V. Lee
Redwood City

No more integrity

I was privileged to have had the experience of two careers that called for integrity and responsibility. As a military officer, I served in combat in World War II and Korea. The personnel under my command in combat activities had the right to expect I would perform my duty with integrity and responsibility. As an attorney, the court and my clients had the right to expect that I would perform my duty to them with integrity and responsibility.

I was disappointed to read that attorneys who had been disbarred were able to regain the right to practice law. Attorneys should know that they have only one reputation and, if they are unable to know right from wrong and commit an offense that is punishable by disbarment that is the punishment they will receive.

Public opinion polls reflect that attorneys are not held in high regard and there is a reason for that perception. To regain the reputation attorneys should rightfully possess, it is up to the California bar to make disbarment permanent.

Wilbur L. Coats
San Diego

Far too lenient

David Cameron Carr has candidly disclosed his professional obligations to attorneys in disciplinary proceedings before the State Bar, and al-though I respect his position, I reject it.

Although our current disciplinary system is touted as being one of the finest in the country, and a model for others, I can’t help but wonder how far we have really come in all these years since I was a young lawyer.

I continue to read the published disciplinary reports, and am appalled at the leniency of sentencing for crimes and other breaches of fiduciary responsibility. I take it personally as an attack upon our profession from within, and certainly understand it as a primary reason for the contempt that many in the public have for lawyers. 

It hurts all of us and does nothing for the reputation of the public to let erring lawyers off with “a slap on the wrist” and even to allow those who have been disbarred to be re-instated. If we can’t control ourselves, who do we want to have do it?

Donald B. McCaw
San Anselmo

Have a heart

I was surprised at the randomness of Wendy Borcherdt’s thoughts. She is appalled that people (like me) with felony convictions are given a second chance to practice law. That, I understand. But Ms. Borcherdt doesn’t articulate why a person convicted of any felony is later such a threat to his/her clients when, upon application to and intense scrutiny by the State Bar, it is determined that the offending attorney should get another chance.

I was convicted of assault with a deadly weapon. My underlying acts were separate from the practice of law. No client of mine has ever been treated better by another lawyer. A personal lifestyle gone awry and a moment’s terrible judgment might be a good reason to bar one from a profession, but there should be exceptions. It takes someone with experience and intellect to try to fairly determine whether or not a suspended or disbarred attorney should again be permitted to practice law.

I also understand how important the public image of lawyers and judges is to the profession. But I fear that the kind of “no forgiveness” attitude I see more and more in society is resulting in class wars. People who have no time or inclination to consider fairness as opposed to just setting up a computer program to disbar people and throw them onto a waste heap just aren’t nice people. We see this attitude across the board in society now, and I can’t for the life of me figure out why. There is no feeling by people like Ms. Borcherdt that a person who has paid a debt to society is free to try to pick up and start over. Simply put, there’s no compassion.

The reason that lawyers are held in poor esteem by the general public does not have to do a whit with the discipline process. It has to do with what I saw from the beginning days of law school — too many people want a law license because they think that after graduation and upon passing the bar, the heavens will open up and rain money down upon them. Attorneys who actually care about their clients are too few and far between.

But please don’t give me the line that lawyers who were disbarred or suspended for conduct not related to the practice of law are threats to their clients.

Right out of law school a friend of mine got into trouble for mixing client funds with his personal funds. No client lost money. He was disciplined. I know him well and believe that he didn’t understand the rule. He kept the money in a dresser drawer. He’s now a well-respected lawyer while the profession, and his clients, are better off for it.

Timothy Lee Davis
Columbus, Ohio

Ever lower standards

The June issue prompted me to write about how California has lost touch with the meaning of disbarment. The July issue presents the same issue on a different and even more pernicious level.

“A heavy caseload of addiction” discusses the State Bar Court’s Alternative Discipline Program (ADP), which holds in abeyance discipline for the misconduct of drug and alcohol abusing attorneys while they undergo treatment. Judge JoAnn Remke is quoted as saying, “You have [chemically dependent] attorneys in a revolving door system . . .” 

There, of course, is the fundamental error. The State Bar casts itself in the role of a social service agency for failed attorneys. It even charges every active attorney $10 a year to assist lawyers with addiction or mental health problems. 

When I took the bar exam, a license to practice law meant a lot more than just three years of study, passing an exam and meeting character standards based on the first 30 years of my life. Having a license to practice law was viewed as a privilege, and it carried with it the implicit endorsement from the state of California that I was competent to provide legal services. 

Concomitantly, I believed that if my standards of personal behavior ever fell below the standards required for admission to the bar, or if I engaged in professional misconduct as an attorney, that I would be facing not a “revolving door,” but an exit door.  

Now, once candidates are admitted to the State Bar, lower standards are applied in evaluating their continued qualification and suitability as attorneys. This smacks not of privilege, but of an entitlement to practice law.

And, it foists on the people of California — with the State Bar’s endorsement — attorneys who will never again be able to meet the standards that they were required to meet as a condition of their original admission to the bar.

Perhaps these failed attorneys can be restored to socially productive lives. But that is not the function of the State Bar. Even after successful “treatment” these people couldn’t qualify as baggage screeners at an airport. So why should the State Bar endorse their legal services?

J. Jeremiah Mahoney
Alexandria, Va.