Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


Not Beanbag But There Are Rules, Especially for Lawyers

Finley Peter Dunne’s famous creation, Mr. Dooley, is quoted as saying that “politics ain’t beanbag,” a shorthand way of expressing the reality that aggressive tactics, including outrageous statements about an opponent, are a fact of life in political campaigns.  Recent events in the Presidential race certainly bear that out.  But when the candidate for office is a California lawyer, and the office is judicial, the rough and tumble of politics enters a more nuanced environment. 

Canon 5(b)(2) of the California Code of Judicial Ethics provides that a candidate for judicial office shall not “knowingly, or with reckless disregard for the truth, misrepresent the identity, qualifications, present position, or any other fact concerning himself or herself or his or her opponent or other applicants.”    One could wish that Canon 5 applies to all candidates for any office.  In 1997, the California Supreme Court approved a new Rule of Professional Conduct, rule 1-700, which provides that a California lawyer running for judicial office must comply with Canon 5. Failure to do so is a cause for professional discipline under Business and Professions Code section 6077.

It took almost twenty years but the first case applying this new rule has finally come down, a published and citeable decision from the Review Dept. of the State Bar Court: In the Matter of Parish (Review Dept. 2015) 5 Cal. State Bar Ct. Rptr. ___,  2015 WL 514334.  It is a cautionary tale for any lawyer who desires to seek judicial office by election.

Mr. Parish was a well regarded deputy district attorney in Yolo County, and, as the decision describes him, a political neophyte.  He undertook to run against Superior Court judge Daniel Maguire, who was appointed to the bench by Gov. Schwarzenegger after serving as the Governor’s legal affairs secretary.  As a political neophyte,  Mr. Parish relied on professional political advisors, including Kirby Wells and Aaron Park, who advised him that he was not being aggressive enough in his campaign.

Following Mr. Park’s advice, the campaign prepared a mailer to send the voters in the County.  The mailer featured a picture of a scowling Gov. Schwarzenegger, described Judge Maguire as “Arnold’s Bagman”, linked the Judge to the Governor’s decision to commute the sentence of convicted murderer Esteban Nunez (son of the former Assembly Speaker) and baldly stated that he “was involved in a sordid case of corporate fraud that involved payment of bribes in Russia.”

The mailer created a firestorm but not the one that Mr. Parish intended.  Within days, he conceded that the accusation regarding payment of bribes in Russia was inaccurate.  Nonetheless, key supporters soon withdrew their support and Mr. Parish lost the judicial election to Judge Maguire by a landslide, receiving only 23% of the vote.

But Mr. Parish’s troubles were far from over.  The Office of Chief Trial Counsel (OCTC) , disciplinary office of the State Bar, brought formal discipline charges against him for violating rule 1-700, based on the mailer; on a campaign sign that read

Law Enforcement’s Choice
Clint
Parish

Judge
Because Experience Matters

and for a sign that stated that Mr. Parish was endorsed by the Winters Police Department (in fact, he had been endorsed by the Winters Police Officer Association.)

At trial, OCTC argued for a broad interpretation of the rule as prohibiting more than factual misrepresentations, seeking discipline for “subtly” creating “the false impression” and creating “by innuendo the false impression” that Judge Maguire was involved in the decision to commute the criminal sentence, contending that it was an “unfair and dishonest” to “imply” Judge Maguire's involvement.  OCTC argued that an attorney is required to refrain from misleading and deceptive acts without qualification.

Both the hearing judge and the Review Dept. rejected this argument, based on discipline cases involving attorney representations to clients and to judges in the courtroom, as inapposite because it did not consider the nature of campaign communications as core First Amendment speech.  Instead, the State Bar Court looked to the standard adopted by the Ninth Circuit in Standing Committee on Discipline. v. Yagman (9th Cir.1995) 55 F.3d 1430, 1437 and adopted by the Review Dept. in an earlier case  In the Matter of Anderson (Review Dept.1997) 3 Cal. State Bar Ct. Rptr. 775.

Anderson involved a lawyer who made a number of serious accusations against Orange County Superior Court judges outside the courtroom, statements that he later argued were protected by the First Amendment.  In that case, the Review Dept. found that an attorney could not be disciplined for speech that is protected by the First Amendment, but that factual misrepresentations are not protected and OCTC had the burden to prove that the representations were false.  On remand, OCTC declined to put the judges on the stand to deny Mr. Anderson’s accusations and he was never disciplined.

The hearing judge found substantial mitigation in Mr. Parish’s case based on Mr. Parish’s timely admission that the accusation regarding bribes in Russia was not true and issued an admonition, which is a non-disciplinary sanction, and extremely rare.  Both Mr. Parish and OCTC appealed.   The Review Dept., applying the Yagman standard, found that the statement regarding the Russian bribes was made in reckless disregard of the truth but that the other statements, including those in the campaign signs were not, and did not furnish a basis of discipline.

The lesson from Parish is that when it comes to an attorney running for judicial office, the high road is the only road, regardless of what a professional campaign consultant might say.

-- David Cameron Carr

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**