I recently noted that profanity may be the path to credibility. See Crass Credibility (December 2023). If it is, then how might we identify the most credible, the exemplar? Perhaps we would search for the most profane?
I learned a new word this week. I do a great deal of reading and writing. It is somewhat rare to run across a word with which I have no familiarity. Kudos to the good folks of California. Reproval has two meanings, according to the folks at Merriam-Webster.
"to scold or correct usually gently or with kind intent"
or
"to express disapproval of: CENSURE"
It is difficult to discern which meaning the California example directs. I found the word when I happened to come across an old post I penned in March 2020 as the pandemic was beginning. See We Don't Need You (March 2020). In the past 4 years, I have somewhat lost track of a California attorney. He appears to be currently practicing law in California. After finding my post, I tried unsuccessfully to find news coverage following up on the facts in that March post.
I found a September 2023 California Bar investigation conclusion. It ended with a "Public Reproval." Whether it is a "kind intent" scolding or a censure is left to the reader.
If you do not remember this attorney, then Google might be your aide. He is an "AV" rated attorney according to Martindale Hubbell. Many lawyers like to brag about their Martindale Hubbell rating. Martindale Hubbell says that this AV means:
"AV Preeminent®: The highest peer rating standard. This is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers."
Communication skills? Back to the dictionary, and the plain meaning of words, "preeminent" means "having paramount rank, dignity, or importance: OUTSTANDING, SUPREME." So, one with such an accolade would perhaps be expected to in fact be a fitting example or exemplar. Might a preeminent lawyer be anticipated to be the epitome of dignity, respect, collegiality, and decorum?
The public might presume from this badge that any "AV-rated" attorney is exceptional, or any of a long list of other laudatory adjectives. Someone who is "preeminent" might be thought of as exemplary or worthy of praise and emulation. Of course, it is possible that any rating service conclusion might not tell someone's whole story.
This attorney made the news back in 2020 for his intriguing use of words. There was analysis on Law.com, Reddit, NoEthics, Bloomberg, The ABA Journal, The Daily Breeze, and more (The California decision includes quotes that might curl your hair). The spectacle of his representation of the legal profession was quite public and newsworthy. I am not certain why there has been no similar coverage of the allegations and outcome more recently.
It is fair to say that the use of language was perturbing to the defendants in a lawsuit in 2019. They apparently asked the Federal District Court for a restraining order. They were embarrassed to even repeat his language in their filing ("regrets being forced to put this language in the record”). I was similarly embarrassed and therefore did not include it in my original post. I, again, decline to include it here.
U.S. District Court Judge Otis D. Wright II was less than complimentary of the attorney's word choices. The Daily Breeze reports that the judge did issue the restraining order. Other stories cited have noted the Judge's apparent displeasure with the allegations, and with the representations and statements the lawyer made in court. There was some discussion of "contempt and monetary sanctions."
The Daily Breeze noted in 2019 that the attorney had voiced contrition and apology:
“I have anger management issues and emotional problems and they (Allstate attorneys) were ignoring me, and I exploded in anger stupidly.” he said. “The worst part is that I potentially harmed my clients. Nothing that the other side did would ever justify using the type of language I used, and that is very important because it is a lesson I have learned in spades and should have already known."
As to the potential for Judge Wright to impose sanctions, the attorney told the Breeze "I deserve whatever the court does to me.”
It is unclear whether he has ever made a more direct and personal apology to the attorney(s) to which the original vitriol was directed.
In September 2023, the State Bar of California entered an 18-page order approving the parties' stipulation for Reproval. It is explicit and includes profane and inappropriate language. The recitation is necessary in the discipline proceeding context, but it is unfortunate and difficult to read (and I used to be a truck driver, where I thought I had heard it all. I was wrong). It illustrates vividly the behavior of an "AV Preeminent®" attorney.
In the aggravating circumstances category, the stipulation notes:
"(8) Harm: Respondent's misconduct harmed significantly a client, the public, or the administration of justice. See page 11."
"(11) Multiple Acts: Respondent's current misconduct evidences multiple acts of wrongdoing. See page 11."
In the mitigating circumstances, it notes:
"(1) No Prior Discipline: Respondent has no prior record of discipline over many years of practice coupled with present misconduct which is not likely to recur. See page 11."
"(8) Emotional/Physical Difficulties: At the time of the stipulated act or acts of professional misconduct, Respondent suffered extreme emotional difficulties or physical or mental disabilities which expert testimony would establish were directly responsible for the misconduct. The difficulties or disabilities were not the product of any illegal conduct by Respondent, such as illegal drug or substance abuse, and the difficulties or disabilities no longer pose a risk that Respondent will commit misconduct. See page 12."
"(11) Good Character: Respondent's extraordinarily good character is attested to by a wide range of references in the legal and general communities who are aware of the full extent of Respondent's misconduct. See page 12."
The report repeats various statements from the attorney's emails. It notes "Respondent sent the emails described in paragraph 2 with the intent to intimidate, threaten, and harass." And that they "served no legitimate purpose other than to harass, bully, and demean opposing counsel." Those who received them "felt threatened and feared for the personal safety of themselves and their families." It also memorializes that the attorney withdrew from the particular case, but that "the court verbally reprimanded" him.
According to the ABA Journal, the court actually asked the attorney to resign from the practice of law. The court told the attorney to "shut up," and that he had "threatened people" and "had been acting like a gangster." The trial judge promised, "I am going to do what I can to remove you from this profession." One must applaud the judge's willingness to address the profanity, homophobia, and venom that was spewed in this instance. But, what the judge could do was apparently not enough. The attorney will remain preeminently® practicing law.
There is a lengthy description of the attorney's emotional difficulties, his personal circumstances, and his interaction with medical professionals. No one wants such details in the public domain, but there they are. And, despite his intriguing word choices, his interactions with the District Judge (See ABA Journal), and the circumstances, the document memorializes the conclusion of the attorney's "extraordinary good character, as demonstrated by a range of references provided by individuals aware of his misconduct."
In addition to the Reproval, the attorney was ordered to
"Respondent must read the California Rules of Professional Conduct (Rules of Professional Conduct) and Business and Professions Code sections 6067, 6068, and 6103 through 6126."
"Respondent must comply with the provisions of the State Bar Act, the Rules of Professional Conduct, and all conditions of Respondent's reproval."
"Respondent must make certain that the State Bar Attorney Regulation and Consumer Resources Office (ARCR) has Respondent's current office address, email address, and telephone number."
"Respondent must schedule a meeting with Respondent's assigned Probation Case Coordinator to discuss the terms and conditions of Respondent's discipline"
"Respondent must submit written quarterly reports to the Office of Probation"
"Complete E-Learnlng Course Reviewing Rules and Statutes on Professional Conduct"
"Respondent must submit to the Office of Probation satisfactory evidence of completion of the State Bar Ethics School and passage of the test given at the end of that session"
"Respondent take and pass the Multistate Professional Responsibility Examination administered by the National Conference of Bar Examiners"
The document thus suggests there is some period of probation, but the duration of that is less clear. It is perhaps one year: "Respondent is, ordered to comply with the following conditions attached to this reproval for 1 year (Reproval Conditions period)."
I have questioned Do You Care About Reputation (June 2023) and asked How Will You Be Known (December 2015). I wonder whether this lawyer may long for the Right to Be Forgotten (December 2019). I sit this morning in the pre-dawn and wonder how long this series of emails, intriguing word choices, arguments, and publicity will follow this "AV Preeminent®" attorney. Some may wonder how such an example is perceived to be of such "extraordinary good character" in the legal community. A few might wonder whether that says more about the attorney, the legal community, or others.
Hopefully, the Rick Warren maxim “We are products of our past, but we don't have to be prisoners of it,” finds purchase here. It is hoped that the perceptions of some are validated, and the "extraordinary good character" here recovers from this pothole and finds a smooth road beyond. Otto Von Bismark (the originator of modern workers' compensation) noted similarly “Fools say that they learn by experience. I prefer to profit by others' experience.” Might we all take some guidance from the attorney?
Might we all gain some insight into the American legal profession generally from the whole story? Do we, as the attorney asserts, have a First Amendment right to such language? Or, is there some outer boundary? I leave that to you, and your review of the 18-page order.