GLENN D. RAMIREZ, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
S.F. No. 24117
Supreme Court of California
Nov. 10, 1980.
28 Cal. 3d 402
Glenn D. Ramirez, in pro. per., for Petitioner.
Herbert M. Rosenthal and Scott J. Drexel for Respondent.
OPINION
THE COURT.--Review of recommendation of the State Bar Disciplinary Board that petitioner, Glenn D. Ramirez, be suspended from the practice of law for a period of one year, that execution of the order for such suspension be stayed, and that petitioner be placed on probation for the period of one year on conditions including actual suspension for one month.
The disciplinary board found petitioner had violated his oath and duties as an attorney (
Petitioner was admitted to the practice of law in Oregon in 1952 and in California in 1955, presently maintaining his law office, as a sole practitioner, in Klamath Falls, Oregon. He has no prior disciplinary record.
In May 1967, John V. and Aline S. Terry executed a loan agreement with Klamath Production Credit Association (KPCA), a farm credit bank, to obtain financing for their farming and cattle-raising operation in Tulelake, California. As security for the loan, the Terrys executed a lien on farm equipment and livestock and a deed of trust on all 239 acres of their farm. The Terrys received operating loans from KPCA totalling approximately $68,000.
KPCA refinanced Terrys’ loans in 1968 and in 1969, and made additional loans in 1970. When the Terrys were unable to repay the loans at maturity in 1971, KPCA instituted an action in Siskiyou County Superior Court1 seeking foreclosure of the security interests. KPCA alleged the Terrys were in default of principal and interest payments totalling approximately $45,000.
The Terrys retained petitioner to represent them in the foreclosure action. Petitioner cross-complained in behalf of Terrys, seeking compensatory and punitive damages and cancellation of the loan instruments on grounds of deceit and breach of fiduciary relationship.
Following trial, a jury awarded Terrys general damages of $60,000 and punitive damages of $5,000 grounding KPCA‘s liability on “deceit and undue influence,” and the court entered judgment in those amounts. The judgment also relieved Terrys of any obligation to repay the outstanding balances of the KPCA loans.
On appeal the Third District Court of Appeal, in an unpublished opinion (Justices Puglia, Friedman and Regan) reversed judgment on grounds jury instructions were prejudicially erroneous and the judgment
Petitioner thereafter filed in United States District Court for Eastern District of California an action on Terrys’ behalf against KPCA and Court of Appeal Justices Puglia, Friedman and Regan.2 Petitioner alleged Terrys’ property had been taken without due process of law in violation of the United States Constitution and the Civil Rights Act of 1863. The district court dismissed the action as to the justices on the ground of judicial immunity, and petitioner appealed on behalf of the Terrys to the Ninth Circuit Court of Appeals.3
In the course of the appeal petitioner filed in the Ninth Circuit a reply brief in which he stated Justices Puglia, Friedman and Regan had acted “unlawfully” and “illegally” in reversing the trial court‘s judgment in favor of the Terrys. He further stated: “The case involves the question: Are Appellate Judges above the law? As to KPCA: Can the judges give you what the law does not? (By taking the Terrys’ property they become parties to the theft.)” Petitioner also implied the justices had improperly favored KPCA, stating: “Money is king, and some judges feel they are there to see that it doesn‘t lose.”4 Petitioner also stated that “the KPCA by its power and influence and money was able to induce the defendant judges to act in an unlawful manner.... ”5 Fi-
While the appeal was pending in the Ninth Circuit, the State Bar commenced a disciplinary investigation. The hearing panel indicated during proceedings that it would consider terminating the investigation by admonition if petitioner would offer an apology to Justices Puglia, Friedman and Regan. The State Bar examiner stated she would oppose such a termination. (See former Rules Proc. of State Bar, rule 25.20, West‘s Ann. Bus. & Prof. Code, foll. § 6087.) Nevertheless, petitioner wrote a letter to the three justices, apologizing for and attempting to explain his statements. In the letter petitioner asserts he never intended his statements as an inference the justices had received money from KPCA to induce them to render a decision favorable to KPCA. Petitioner also moved in the Ninth Circuit Court of Appeals for permission to delete the offensive statements from his reply brief. Notwithstanding petitioner‘s action, the examiner caused the subsequent admonition to be set aside and formal proceedings to be resumed on the ground petitioner‘s statements concerning the justices warranted more substantial discipline.
After the Ninth Circuit affirmed the district court‘s judgment of dismissal of the Terrys’ complaint, petitioner sought certiorari in the United States Supreme Court. Language in the petition for the writ permitted inferences that Justices Puglia, Friedman and Regan had falsified the record on appeal in the state court proceeding and additionally implied that the justices’ “unblemished” judicial records were “undeserved.”7 As a result of petitioner‘s further statements, a second preliminary investigation hearing was conducted by the State Bar and the instant disciplinary proceeding was commenced.
The hearing panel questioned petitioner extensively concerning the factual basis for his allegations against the justices. Petitioner asserted his belief that the justices had acted illegally in concluding there was no substantial evidence supporting findings of deceit and undue influence on the part of KPCA. He contended that by reversing the judgment the justices knowingly acted in excess of their judicial authority--hence “illegally.”8
In support of his assertion that the justices were biased in favor of KPCA, petitioner notes that KPCA had obtained three extensions of time within which to file its opening brief on appeal. Moreover, at a settlement conference presided over by Justice Paras prior to oral argument, counsel for KPCA stated that banking institutions might wish to file amicus curiae briefs in the case. Petitioner apparently construed these circumstances as evidencing prejudice against his clients.
In response to questions regarding the factual basis for his allegation of the existence of an “invidious alliance” between KPCA and the justices, petitioner testified the nature of the federal court action necessitated the inclusion of that particular phrase. He relied on a federal court decision denying relief in a civil rights action for failure to allege existence of an “invidious alliance” or “invidious conduct,” and for that reason he inserted the phrase “invidious alliance” into his brief.9
Petitioner also testified he felt the prevailing circumstances justified his characterization of the justices as “parties to the theft” of his clients’ property. He asserted KPCA‘s actions constituted theft and the justices, in exceeding their authority and enabling KPCA to carry out that theft, became “parties to the theft.” In an earlier deposition petitioner had stated his belief the argument could lawfully be made that the judges knowingly and intentionally committed an illegal act.10 In effect, petitioner asserted that the justices “knew what they were doing” in allegedly acting beyond the jurisdiction of the court.
Petitioner was further questioned about statements contained in his petition for certiorari to the United States Supreme Court regarding falsification of the record and the reputation of certain judges. (See fn. 8, ante.) The statements, petitioner testified, were not intended as accusations against specific justices. Petitioner asserted the language was used in the context of an argument against the doctrine of judicial immunity. According to petitioner, falsification referred to occurred when, on remand, it was made to appear that the trial court had found in KPCA‘s favor when the court had in fact entered judgment in favor of the Terrys. Any objective reading of the petition leaves little doubt that the statements, while intended to be couched as an argument against judicial immunity generally, refer specifically to the justices in question.
In his instant petition for review, petitioner contends: (1) the State Bar is without jurisdiction to proceed against him because such proceedings infringe petitioner‘s First Amendment right to freedom of speech; (2) the State Bar proceedings are an attempt to prevent Terrys from litigating their claims; (3) the board‘s findings are not supported by evidence; and (4) the State Bar is guilty of laches in that the hearing panel rendered its final decision in July 1979 but the record of the proceeding was not filed with this court until January 1980.
Petitioner makes no showing in support of his second contention that the initiation of disciplinary proceedings has prevented him from representing his clients, or that the Terrys have otherwise been prevented from litigating their claims.
Petitioner‘s third contention based on the claimed insufficiency of the evidence clearly fails. Petitioner bears the burden of showing the board‘s findings are not supported by the evidence or that recommended discipline is unwarranted. (
The record indicates the allegations contained in petitioner‘s reply brief filed in the Ninth Circuit and in his petition for writ of certiorari filed in the United States Supreme Court are not supported by any
Petitioner‘s fourth contention that these proceedings are barred by laches is without merit. Mere lapse of time is neither a denial of due process nor a jurisdictional defect in an attorney disciplinary proceeding absent a showing of specific prejudice. (Wells v. State Bar, supra, 20 Cal.3d 708, 715; Caldwell v. State Bar (1975) 13 Cal.3d 488, 496.) Petitioner fails to make any such showing.
It appears clear petitioner has violated his oath and duties as an attorney and is subject to discipline therefor.12 In support of the recommended discipline, this court has heretofore disciplined attorneys for violating their oath and duties in making unjustified and demeaning allegations against judicial officers. In Hogan v. State Bar, supra, an attorney was suspended for asserting a judge was a “petty judge” who was prejudiced against the attorney‘s client and certain witnesses.
In In re Philbrook, supra, 105 Cal. 471, an attorney filed a brief on appeal in this court containing “offensive, scandalous, and contemptuous language” concerning one of this court‘s justices and two superior court judges. The brief also contained language inferring the justices may be improperly influenced in deciding the appeal. Such conduct was deemed to exhibit “only a sheer intent to be maliciously contemptuous” and to warrant suspension of the attorney for three years to insure public confidence in an impartial judiciary.
Petitioner does not address the issue of recommended discipline. The record indicates he may well have been motivated by a good faith belief in his clients’ position and the need for vigorous action in protecting their claimed rights. Petitioner has consistently maintained his statements were made in the course of what he believed to be zealous but proper representation of his clients’ interests.13 He describes himself as a “poor persons’ lawyer,” a characterization illustrated by his representation of the Terrys--who appear to have limited assets--for nearly nine years. He states the problem giving rise to the disciplinary proceedings is one of semantics, contending the State Bar has misconstrued the language contained in his court filings.
A factor which might be considered in assessing discipline is petitioner‘s apology to the justices he had vilified. (Compare Peters v. State Bar, supra, 219 Cal. 218, 223; In re Philbrook, supra, 105 Cal. 471, 481.) However, after having been put on notice of the seriousness of his misconduct and apparently persuaded that an apology was in order, petitioner again maligned the justices with suggestions comparable to his earlier aspersions in seeking relief from the United States Supreme Court.
It is ordered that petitioner be suspended from the practice of law in this state for a period of one year commencing on the effective date of this order; that execution of the order for such suspension be stayed and petitioner be placed on probation for such one-year period upon conditions (1) he be actually suspended from the practice of law in this state for the first 30 days of the probationary period, (2) he take and pass the Professional Responsibility Examination administered by the Committee of Bar Examiners within one year after the date upon which this order becomes effective (see Segretti v. State Bar (1976) 15 Cal.3d 878), and (3) he comply with the State Bar Act and Rules of Professional Conduct of the State Bar during the probationary period. This order shall become effective 30 days after the opinion herein is filed.
NEWMAN, J., Dissenting.--The State Bar asks us to rule that certain action recommended by its disciplinary board is “fully justified and amply warranted.” (Brief filed on Apr. 14, 1980, p. 38.) The discipline recommended is (1) actual suspension from the practice of law for 30 days, (2) probation for 1 year, and (3) a requirement that the disciplined attorney pass the Professional Responsibility Examination. He has been practicing law for nearly 30 years, is a sole practitioner, and has no record of prior discipline.
What were his misdeeds? The bar contends that he represented two clients too zealously and that, contrary to law, when he sought to preserve their cause of action for alleged judicial usurpation of authority, he claimed that the usurpations reflected the influence of wealth in the administration of justice. He wrote carelessly; and his attack on a system that assertedly breeds judicial usurpation might, by some, be read as an attack on the integrity of three appellate judges. Yet absent any evidence, other than his words, that he sought to charge the judges with some kind of corruption, should not those words be read as no more than a forceful contention that the appellate judges had usurped the power of the jury and of the trial judge by setting aside the verdict and judgment? (Cf. the comparably forceful dis. opn. in Barrett v. City of Claremont (1953) 41 Cal.2d 70, 80: “This is not announcing a rule of law--it is a rule of four men--who may be for the time being, men who have a preconceived notion in cases such as this, and who are disposed to usurp the function of the jury and trial judge in a grasp for power--power denied them by the Constitution and laws of this state.“)
The disciplinary board‘s eighth finding states: “There is sufficient evidence to support a finding that the Respondent has falsely maligned three Justices of the District Court of Appeals [sic], and that the Respondent has gone far beyond the borders of fair judicial criticism, in fact, has accused the Justices of a crime, to-wit, theft. The statements are not ‘fair comment,’ they are ‘abusive and defamatory.’ Respondent has violated the provisions of sections 6067 and 6068 (b), (d) and (f) of the Business and Professions Code of the State of California.”
The relevant sentence of that first cited section,
What comprises the “sufficient evidence” the board construed as justifying its conclusion that “Respondent has violated...6068 (b), (d) and (f)“? The pertinent findings are:
“III
“In the complaint which Respondent caused to be filed in the Federal Court Action, Respondent alleged that Justices Friedman, Puglia and Regan ‘unlawfully’ and ‘under the color of their office as Justices of the
“IV
“Respondent‘s complaint was dismissed by the United States District Court and Respondent appealed to the United States Court of Appeals, and in his brief filed with that court alleged:
“(a) ‘The Defendants, FRIEDMAN, PUGLIA and REGAN invidiously reversed a judgment of the trial court in favor of the TERRYS’ [sic] on the basis of erroneous jury instructions and verdict form.’
“(b) ‘The error charged to KPCA and the defendant judges constitutes an illegal violation of due process, not error in interpretation of the law.’
“(c) ‘Money is king, and some judges feel they are there to see that it doesn‘t lose.’
“(d) ‘Thereafter, the KPCA by its power and influences and money was able to induce the defendant-judges to act in an unlawful manner so as to deprive the Terrys of their compensatory damages, their property, including everything that they had worked for for over twenty-five years.’
“(e) ‘Thereafter, the defendant-judges with their invidious alliance with KPCA, did unlawfully act to deprive the Terrys of their judgment and impose a lien upon their property, taking away their legal rights of a trial by limiting, without authority, pleadings and evidence upon which they could proceed.’
“(f) ‘The case involves the question: Are Appellate Judges above the law? As to KPCA: Can the judges give you what the law does not? (By taking the Terrys’ property they become parties to the theft.)’
“V
“Thereafter in a petition to the United States Supreme Court for a Writ of Certiorari, Respondent alleged:
“(h) ‘Does the undeserved-unblemished reputation of a judicial officer outweigh the wrongful taking of a farm couple‘s property and livelihood under a misconceived theory of judicial self-preservation? This is judicial sovereignty without legal basis or right.’
“(i) ‘This case does not charge the Respondents Friedman, Puglia and Regan with error, but with judicial wrong doing.’
“VII [VI?]
“Respondent, in testifying before the Hearing Panel expressed a continuation of his belief that the Appellate Justices had acted in violation of the law and that it was not ‘an innocent mistake on their part, as evidenced by their innuendoes and derogatory remarks.’ It is obvious to the Hearing Panel that the Respondent became so personally engrossed in his clients’ case that he lost all perspective and objectivity. After his letter of apology to the justices, he still persists in his opinion that the justices are part of a conspiracy to defraud his clients.”
In fact what happened?
Those findings hardly tell the full tale. We must study the record to learn, for instance, about the lawsuits involved. In petitioner‘s words, on behalf of John and Aline Terry he filed a complaint in federal court on June 11, 1976, “for injunctive relief and damages...to redress the deprivation of...rights and privileges and immunities secured by the Constitution and laws of the United States.” The defendants were Klamath Production Credit Association (KPCA) and the three California Court of Appeal justices.
Further (quoting from his complaint to the federal trial court): “[Plaintiffs] in 1967...were contacted by the Defendant KPCA regarding a farm operating loan to refinance their farm operation. [¶] Thereafter, KPCA by deceit and undue influence induced Plaintiffs to pledge their entire farm operation to secure payment of purported operating loans and through the control derived by said operating loans did injure and damage Plaintiffs in excess of $120,000.00....[¶] [KPCA]
The allegedly offensive words
With regard to its findings IV and V, above, the board ingeniously sifted the federal court reply brief and certiorari petition that were filed in March and December 1977, respectively. Words such as “invidious” and “invidiously,” “induce,” “parties to the theft,” “falsified,” and “un
I think that the critical paragraphs of petitioner‘s reply brief, his letter of apology, and his certiorari petition--when fairly and empathetically read and when augmented by his statements (1) that he is a “poor person‘s lawyer,” and (2) that the aim of his advocacy was “to point out the inequity between the treatment of poor litigants and those with substantial financial resources”2--suggest that the words the board has tabbed do not warrant the proposed discipline. In context, especially when we keep in mind that the three justices were defendants in the case he brought and apparently were relieved from liability by the federal court not after a fair trial but only because of “judicial immunity,” all that the words disclose is that petitioner was a relatively inexperienced lawyer on appeal who, with ambiguity perhaps, spoke sincerely though inelegantly on behalf of his clients, “[as] required by the justice of the cause with which he is charged.” (
In appellate litigation some Queensberry rules as to lawyers’ speech are essential, whether or not some clients think the rules are too gentlemanly. Yet the State Bar officials and the judges who interpret
When does a lawyer “abuse...this right?” And when may the rights of lawyers (and thus their clients4) be restrained or abridged? Only, I submit, in very restricted situations. For instance, could the State Bar duly entertain charges that a prosecutor violated his ethical duties when, outraged that this court reversed a death sentence he successfully had sought at trial, he is reported to have pronounced: “It‘s obvious with this decision that they (the majority members of the Supreme Court) will use any silly reason they can find to avoid letting a death sentence stand.... [T]he four justices have violated their oaths to uphold the Constitution and they should be recalled.“? (See Welborn, Prosecutor Plans Recall Drive Over Ruling on Death Penalty, Santa Ana Register (June 11, 1980) pp. A 1, A 10; cf. United States v. Morgan (1941) 313 U.S. 409, 421,
ed in a jury trial. Further, I witnessed dozens of different instances when prosecutors dismissed cases at trial because they doubted the defendant‘s guilt. The power of the middle class thus protected its sons and daughters. But this power did not necessarily spring from any ability of the individual defendants or their families to bring the judge‘s actions under public scrutiny or to affect the judge‘s chances at the next election. Rather, this power seems to have had its source both in the personal identification which the judges and prosecutors felt with these middle class defendants and their families, and in the middle class expectations of all parties as to how our criminal justice system operates, expectations that no one involved was prepared to disappoint.” (Mitchell, The Ethics of the Criminal Defense Attorney--New Answers to Old Questions (1980) 32 Stan.L.Rev. 293, 318; cf. Clifford, President‘s Message (1980) 55 State Bar J. 230: “President Jimmy Carter has charged that 10 percent of the people receive 90 percent of the legal services available in this country.“)
The dispute here does not concern (1) a lawyer‘s out-of-court comments, or (2) his in-court oral comments. It relates exclusively to comments he has made in a reply brief and a certiorari petition. No one suggests that petitioner violated criminal law or defamation law. Might the allegedly offensive words, however, constitute contempt of court? Apparently not, because 90 years ago the Legislature pronounced that “[n]o speech or publication reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings.” (
Nearly 70 years ago, troubled by a letter that “falsely imputes to the justices of this court improper conduct of which they are entirely innocent,” Justices Shaw, Sloss, Lorigan, Henshaw, and Melvin ruled that lawyers are not immunized by
Also meriting emphasis is the dissenting opinion of Mosk, J. (Tobriner, J. conc.) in In re Buckley (1973) 10 Cal.3d 237, 259,
The State Bar and the majority here rely primarily on three precedents--one (Hogan) decided in 1951; the second (Philbrook) decided in 1895; the third (Peters) decided in 1933.
I am not persuaded that Philbrook outlives the free speech developments that began in the 1920‘s. (Cf. Patterson, The Limits of the Lawyer‘s Discretion and the Law of Legal Ethics: National Student Marketing Revisited (1979) Duke L.J. 1251, 1273 (“[T]he pace of change in the law of legal ethics has, until recent years, been glacial.“); see also Powell, The Organized Bar Under Scrutiny, Am. Bar Foundation Research Rep. (Spring 1980) No. 16, p. 1.) In addition, petitioner‘s conduct in our case exemplifies neither “a sheer intent to be maliciously contemptuous” (Philbrook, supra, 105 Cal. at p. 478) nor the type of personalized attack that led to the discipline in Peters (219 Cal. at pp. 220-224).
As to Hogan, it was charged there that the lawyer “engaged in offensive personality by referring in a disparaging way to the judge presiding in the case, charging him with being a petty judge, with acting as a prosecutor and attorney for the plaintiff in the case, and with being prejudiced against certain witnesses because of their religion.” (36 Cal.2d at p. 808.) Therefore on the facts it too seems distinguishable. Moreover, there is ample reason for doubting that in 1980 we should mark
Who will be protected?
Citing Bradpiece, 10 Cal.3d at page 748, the majority in our case conclude: “Petitioner‘s zealous representation of the Terrys cannot excuse the breach of his duties as an attorney. Appropriate discipline must be imposed, if for no other reason than the protection of the public and preservation of respect for the courts and the legal profession.” (Majority opn., ante, p. 414.)
Will the discipline now imposed help protect the public and preserve respect for courts and the profession? When writing his briefs must every lawyer--even in a case where he is suing judges for their alleged malfeasance--neither insinuate nor recite that there are institutionalized distortions? Must he remain mute, regardless of his own and his clients’ views, as to charges that the court system as a whole inherently profits the Establishment?
Almost daily, newspaper headlines confound the proposed insulation of judges from their environs. “A mistrial declared in the case of two white ranchers accused of torturing three Mexicans could touch off violence among Hispanics...,” we learn on page 3 of the Los Angeles Daily Journal of July 31, 1980. Across the entire page A 21 of the San Francisco Sunday Examiner and Chronicle of June 29, 1980, we read:
At the recent Media Workshop on California Courts sponsored by the California Judges Association, the California Newspaper Publishers Association, the Radio and Television News Directors Association, and the Radio and Television News Association of Southern California, B. E. Witkin, esteemed keeper of our conscience, inter alia delivered these remarks (see the Los Angeles Daily Journal (July 3, 1980) p. 4): “For decades many of our finest minds--in the law schools, in the bar and on the bench--have been relentlessly exposing the ailments of the system.... In various ways [their] studies and reports deliver the same message: that while lawyers never had it so good, the legal system never had it so bad. [¶] One of these reports...comes from the nation‘s most articulate contemporary in-house observer, John Frank of Phoenix, Arizona....[¶] Toward the end of [his] comprehensive review of our legal institutions and the manner of their operation, he offers a considered judgment: ‘First,... American civil justice has broken down; the legal system fails to perform the tasks that may be expected of it. Second, the collapse is now. It menaces the rights of our citizens to a determination of their disputes and jeopardizes the capacity of commerce and industry for reasonable planning and action. Third, the curve is down; the situation is getting worse. Fourth, we have no generally accepted remedy. We do not even have a generally accepted program for discussion.’ [¶] Frank describes...in fearsome detail our expensive advocacy and counselling, our cumbersome procedures, our crowded civil trial courts, our slow moving appellate courts, our criminal trial sideshows and our long drawn out postconviction reviews of criminal convictions. And, as he dissects the majestic failures of reform movements of the past, he warns us that our current legislative and judicial efforts are often based upon the same misconceptions that fatally infected the others.... He concludes with a series of far-ranging recommendations, prefaced by this declaration: [¶] ‘We must be prepared to reconstruct the institutions of the law and remodel our lawyers and our judges, even our buildings. We must be prepared to change the substantive law altogether, in every reach, cutting it down to a size our groaning court system can handle. We must be prepared most radically to change our methods.”
We may or we may not agree with all or any of those statements. I suggest, though, that they were rationally uttered and that manifestly there is no need to punish the lawyers who--without malice--conclude that such statements are permissible in an appellate brief.5
The petitioner apparently believed that his clients were aggrieved on March 30, 1976, by the Court of Appeal‘s reversal of his superior court victory. He therefore proceeded in federal courts and, one year later, filed his federal appellate brief. Following a State Bar investigation and a preliminary investigation hearing, “on or about August 1, 1977, petitioner wrote a letter to Justices Puglia, Friedman and Regan, apologizing for the language in his reply brief....” That is what the State Bar advised this court (more than three years after his brief became a public record) in its brief filed here on April 14, 1980.
This court, the bar as a whole, and the public would have been better served, I believe, if the conclusion of the first hearing panelists that an admonition here was enough had been respected. Instead their recommendation was set aside; formal proceedings were resumed; and countless hours and resources of the bar, of Court of Appeal justices (see State Bar exhibits Nos. 4 and 5), and of this court were then expended in new proceedings.6 Allegedly, respect for courts and the profession thereby is preserved and the public protected. Rather, I believe, consci-
The Punishment
The punishment imposed is not appropriate. It also is inconsistent with the majority‘s conclusion that “he may well have been motivated by a good faith belief in his clients’ position and the need for vigorous action in protecting their claimed rights.” (Majority opn., ante, p. 413.) Again quoting
This final observation seems apt: “Section 6068(f) threatens all lawyers, but it does not threaten all lawyers equally....Insofar as the profession purports to and to some extent does open up to minorities, the poor, and the working class, its implicitly racist and class-based rules of decorum operate, as legal ethics had done for some time, either to eliminate the upstarts or to mold them into conformance with the tastes of the governors....[¶].... The offensive personality statute...applies ‘equally’ to attorneys for the elite who rarely have reason to lose their composure and to attorneys for the damned who may have to raise their voices to be heard. To suppress offensive speech is absurd to anyone ‘who envisions our society in anything but a state of languid repose.’ For the powerful and their hangers-on, however, our society is in a state of languid repose, or rather it would be if the agitators and troublemakers could somehow be silenced. Those at the top have no need to be offensive. Those at the bottom--the poor, the workers, women, prisoners, criminals, children, and sometimes their lawyers (when they have any)--sometimes speak in less reassuring tones and terms.” (Black, supra, 31 Hastings L.J. 1097, 1135-1137 [fns. omitted].)
Bird, C. J., and Tobriner, J., concurred.
These are difficult and unpleasant times. The amenities and courtesies of language and demeanor seem to be absent from our social and business environments. One would hope for a kinder and more thoughtful world. However, censorship is not the best method by which to achieve that end.
I might be more sympathetic to the view of my colleagues that we begin the process of censoring the briefs of trial and appellate counsel by threatening them with discipline if our own house were in order. What was said here on behalf of a litigant is not materially different from what some judges and justices have been known to have said about each other or about members of the bar. (See A lesson in Yiddish (Aug. 1980) Cal. J., p. 309. See also, for example, the characterizations by justices in their published opinions regarding their fellow justices as collected by Justice Newman in his dis. opn., ante, at pp. 415, 419.) Does the majority suggest that we begin the process of curtailing the First Amendment rights of judges and justices by filing charges against our colleagues when they use less than judicious language when speaking about each other?
The chilling effect this decision will have on the actions of a lawyer is too high a price to pay for the fragile sensibilities of a judge or justice. Further, it smacks of arrogance to so limit the bar while we ourselves carry on dialogues which match or exceed what was said here.
I respectfully dissent.
Petitioner‘s application for a rehearing was denied December 10, 1980. Bird, C. J., Tobriner, J., and Newman, J., were of the opinion that the application should be granted.
GLENN D. RAMIREZ
ATTORNEY AT LAW
514 WALNUT STREET
P O. BOX 368
KLAMATH FALLS, OREGON 97601
August 1, 1977
Honorable Robert K. Puglia
Honorable Leonard M. Friedman
Honorable Edwin J. Regan
Judges of the Court of Appeals
Courts and Library Building
Sacramento, California 95814
Dear Judges:
I am writing to apologize for language in my recent Reply Brief which lead counsel for the State Bar Association to conclude that I intended “that the judges received money to render a decision against your client,---“. Such was not intended either directly or indirectly. The sole basis of the Terrys’ civil rights case against you is that you went beyond the record including transcripts, briefs, and arguments and took away a Court and Jury finding, verdict, and judgment, reinstated a voided security obligation against his property and foreclosed him from a new trial by limiting the issue on retrial to a minor issue which had been substantially qualified in his first trial.
I am extremely sorry for improper innuendo or inferences that may have taken the words used beyond the above intent, and I am this date asking the Clerk of the United States Court of Appeals for permission to delete from the Terrys’ Reply Brief, language that would lead to these improper conclusions. My apologies and sorrow goes to you personally and the judicial profession generally, as I personally do not believe that the conclusions drawn by the State Bar Counsel happen except in extremely isolated incidents.
Had these matters been brought to my attention by your counsel, the offending words would have been withdrawn forthwith long ago to have avoided any injurious reference.
Respectfully yours,
GLENN D. RAMIREZ