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I am having an “Alice in Wonderland” moment. A newbie lawyer, who has massive student debt and who represented an indigent client in a case in the 7th Circuit, was reprimanded for failing to show up for oral argument. The attorney had advised that neither she nor her client could afford to travel from New York to Chicago for that argument. She said that she had consulted with an ethics attorney who told her not to represent indigent individuals who cannot pay her fees and/or travel expenses. Wait? Am I reading this right? When access to justice is a huge issue, an ethics lawyer told her, “Don’t represent them.” Eventually the reprimand was withdrawn.

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And stop the presses, or whatever the 21st century version would be, because the State Bar of California has recommended that Tom Girardi be disbarred. What a surprise!

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Isn’t this just a wee bit late? Girardi has already resigned from the bar and the likelihood that he will ever return to law practice, with assorted creditors chasing after him, his pending divorce from a reality star, and his Alzheimer’s diagnosis, is doubtful.

And speaking of ethics, or the lack thereof, the state bar has hired an outside law firm to investigate whether prior complaints against Girardi were compromised because of his tight relationships with state bar officials. In a statement, the chair of the bar’s board of trustees said, “The state bar has hired a Los Angeles-based litigation firm to assess whether intentional wrongdoing by anyone associated with the State bar may have influenced how complaints against Girardi were handled.”

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Those most connected to Girardi who worked at the bar are gone, and it’s unlikely that anyone will suffer any consequences beyond what already may have happened. If the point is, however, to suggest implementation of policies and practices that will prevent another Tom Girardi, then the investigation is a good thing. If it’s just to point fingers at past bad actors and say that “that was then, this is now,” I’m not convinced that any report will make any difference.

Now is the time for the Legislature to begin its annual coal-raking of the state bar, as its annual dues groveling gets underway. The Legislature sets the dues for the state bar, and given that has happened in the past year, bar officials may want to practice dancing on those hot coals before appearing in Sacramento.

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An interesting factoid in the LA Times article that I had not previously known: Girardi had three discipline complaints against him in the 1990s. The bar, for whatever reason, limited discipline to a private (not even public) reproval and so Girardi kept his license, and the public was kept in the dark. So much for public protection. Regardless of the nature of the various misconducts alleged, Girardi skated, receiving a more favorable deal than the average Tom. Just another example of unfairness in the discipline process where an unknown schlub gets hammered for lesser misconduct. Time for yet another overhaul of the discipline process?

Have you ever heard or seen the word “Dreckitude?” New York Times columnist Maureen Dowd wrote that the late fashion editor Andre Leon Talley used it, explaining that it means that someone or something is a complete and total hot mess. Our profession doesn’t escape that dreckitude. See Tom Girardi example above and John Eastman example below.

Federal judge David Carter here in the Central District of California is well known for not shying away from doing what he thinks is the right thing to do. Most recently, he said “not so fast” to John Eastman in his effort to dodge a subpoena from the House January 6 Select Committee for his Chapman University emails.  Leave it to Carter to make short work of Eastman’s arguments.

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What amazes me is that peeps think that emails sent through a work email address have any kind of privilege, even those sent from a disgruntled employee to his lawyer. (Surprise!) Every in-house lawyer has stories about employees who were too stupid either to read the employee handbook or to think it applied to them. (Have you heard the one about the employee who emailed porn to his colleagues? Of course, you have.) Every employer worth its whatever has in its employee handbook words to the effect that employees should have no expectation of privacy, especially in emails. Eastman must have thought he didn’t need to read the Chapman University employee handbook or thought that it didn’t apply to him. However, the university says that there was an on-screen reminder every time Eastman logged in. Whoops.

Eastman tangled with the wrong judge. A Vietnam vet who fought at Khe Sanh, Carter is known to be fearless. He is the judge who is presiding over homeless litigation in Los Angeles and Orange counties. He has visited homeless encampments regularly, spoken with the unhoused, and doesn’t fear butting heads with parties and counsel whom he feels are not moving fast enough toward resolution. He wants answers, not excuses, and he wants answers forthwith. If only more judges would be that way. As Liz Dye pointed out, Carter has his very own rocket docket, and he has launched it on John Eastman.

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Do you think that the state bar might launch an investigation into John Eastman’s work to help overturn the election? He’s admitted to practice here and so he had to take the attorney’s oath, which includes the phrase “I will support the Constitution of the United States.” Eastman’s activities go to the very heart of what we, as lawyers, are supposed to do, which is to uphold and defend the Constitution. Any bets as to what the state bar might do?

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

California, California State Bar, Jill Switzer, Legal Ethics, Tom Girardi