Legal Ethics

Lawyer Tales From The West Coast

What do you think about these lawyers?

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Since ATL is pretty East Coast-centric, this week it’s all about various lawyer happenings along the West Coast. (Has anyone ever wondered why it’s not called the Western Seaboard?)

What do you think about this? A California attorney who has been on inactive status for approximately twenty years has reactivated his license and is now representing an indigent defendant in a death penalty case. Whatever you may think about the passage of time and whether this attorney has kept current with all the developments in criminal law and sentencing in the years since deactivating and now reactivating, I wonder how many lawyers would feel competent to undertake such representation due to the passage of two decades.

The attorney, Gary Turnbull, was appointed by the Indigent Defense Program in Bakersfield, which is in Kern County, the next county north of Los Angeles County (think farmland, oil wells, and Buck Owens). The Program selects attorneys when there is a conflict with the Public Defender’s Office. Turnbull replaced the previous attorney appointed to represent the defendant, but it’s unclear why that happened and the Program, so far, hasn’t said.

The ACLU of Southern California says it’s intervening in Turnbull’s appointment. Its argument? Turnbull engaged in “grave misconduct” when he had sex with two daughters of a then client back in the 1980s. However, Turnbull was never disciplined. These encounters were not with a client, but daughters of a client. (Splitting hairs or truly not a violation?) So, should years of inactive status disqualify an attorney from returning to active status, especially when there’s been no disciplinary action? If the attorney says he’s kept current on what he needs to be current, is that sufficient for competent representation?

Let me be clear: I am definitely not suggesting that there should be any sort of “refresher” bar exam. Yech. One time was more than sufficient and how many of us may still suffer from some sort of PTSD?

The hits keep coming for Michael Avenatti, or as one wag has called him, “Michael Avenaughty.” Yes, I know he’s bicoastal, but he’s a licensee here in California. The latest to pile it on is the former girlfriend of an NBA star who was to receive a multi-million dollar settlement arising out of the termination of their relationship. She claims she’s received very little of what she is owed and that Avenatti embezzled her part of the settlement (we all know, or should know, that an attorney is entitled to his fees and costs), which totals almost two million dollars. This is not the first claim of embezzlement that Avenatti faces.

It’s comforting to know that the State Bar of California is not the only state bar association that has had its share of headaches. The Washington State Bar Association, a unified bar association, seems to be embroiled in its share of tsurris (Yiddish for trouble). 

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Not unlike the State Bar of California, members of the WSBA Board of Governors appear to have existential conflicting opinions as to what the role of the WSBA is and/or should be. This same philosophical debate roiled my state bar until it de-unified as of January 1, 2018. The issue: what is the purpose of the WSBA (and the same question can be asked of any unified state bar): is it public protection or is it to serve the needs and views of the lawyer members? The State Bar of California decided it was the former.

Reading between the lines, one of the issues that may have stirred the pot of controversy up in Washington State or at least added fuel to the ongoing fire was the termination of the executive director, Paula Littlewood, who had served in that role for twelve years. The same issue that members raise in many organizations, and not just bar associations, is the lack of transparency. Why was Littlewood terminated? People aren’t saying. WSBA is a public agency, an arm of the Supreme Court. Was it the bar’s decision to keep the termination secret for sixty days or did Ms. Littlewood agree to that for whatever reasons she and WSBA may have had? 

In moving for a preliminary injunction in a lawsuit initiated by a bar member against WSBA (the thrust of that lawsuit is not Ms. Littlewood’s termination but collateral to the request for temporary relief) the issue the Superior Court considered was whether the WSBA had to comply with the state’s open meeting law. The court said yes, that WSBA is subject to the state’s open meeting law, but declined to rule as to whether Ms. Littlewood should be reinstated. She left her position as of the end of March 2019. As we all learned in remedies (or should have learned) a preliminary injunction preserves the status quo, and she is no longer in the position.

Parallels to the State Bar of California’s last few years of controversy are striking. The Board of Governors (now Board of Trustees) terminated then executive director Joseph Dunn in 2014 and spent several years handling his claims before the Bar finally emerged victorious in arbitration.   

Question: how can the public have confidence in lawyers and believe in public protection if a lawyer association is fighting internally and, as happened with the State Bar of California, hangs out its dirty laundry? It’s one thing to have lawyers vigorously advocating on behalf of clients, it’s another to have an unseemly spectacle like the State Bar of California debacles of the recent past (and I am not even mentioning the disciplinary backlog).

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Saul Steinberg’s famous New Yorker cartoon says there is nothing of substance west of the Hudson River. These tales from the West Coast make it clear that I disagree.

old lady lawyer elderly woman grandmother grandma laptop computerJill 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 oldladylawyer@gmail.com.

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