A Devilish Inquiry

All of us in the legal profession make legal decisions.  But like everyone else, we are compelled to make moral decisions, not just within our professions, but also in our everyday lives.  Depending on one's point of view, these decisions, or choices, may be so insignificant they barely qualify for consideration.  The waiter brings you the check with an error … in your favor.  What if the amount involves a $1 error, or an omission of $75 for the wine you ordered and drank?  Do you point it out?  Does the amount matter?  Does it matter if the restaurant is upscale Beverly Hills and the waiter is snooty?

Another example.  When I bring my car in for service, I invariably have a discussion with the service manager after my car has been "serviced."  (Cars are sex objects, right?)  The service manager hands me the keys and reminds me of the questionnaire that will be e-mailed to me in a day or so. "Sure would appreciate it if you could check off 'excellent' for all categories."

I notice the car has not been washed and oil seems to be dripping from the undercarriage.  But because the service manager fixes the problem with haste, I tell him I will say that he is the best service manager ever.  But I will tactfully point out the problems when I fill out the questionnaire. 

The service manger seems to simultaneously smile and wince.  "If you say anything negative about your service experience, it will reflect badly on me and I could get fired."

"In other words, you want me to lie." 

"Oh no," he importunes.  "If you feel that way, just do not answer the questionnaire." 

So the service manager gets an "A" and one of the technicians (mechanics are apparently a lost profession at car dealerships) gets an "F."  But now I am not supposed to answer the questionnaire or lie and say everything was hunky-dory.  Should any of us be parties to this faux conspiracy?  That I have neither the time nor the patience to answer these questionnaires is beside the point.

I discussed this questionnaire phenomenon with a person I know in the "car business."  He opines that the service manager was telling the truth.  Too many negative comments on the questionnaires, in fact, will reflect poorly on the service manager, even though his actions may be blameless.  The questionnaire results are recorded by so-called independent survey companies.  A 99% approval rating for service goes a long way in an advertisement.  Unfortunately, my information comes from a source who has extracted a promise from me not to reveal his/her name.  Yet, on the few occasions I take the time to fill out such a questionnaire, I have generally not stretched the truth … an admission that maybe I have.  I really like the service manager.  Moral choices can drive us nuts.

         By us, I mean lawyers and judges.  Are we not held to a higher standard than others?  I pose this question because rules and guidelines for lawyers and judges cover a wider scope of coverage than issues relating to practicing law or deciding cases.  In California, when judges are "off the bench," they should still keep judicial ethics in mind.  Canon 2 of the California Code of Judicial Ethics requires that a judge "avoid impropriety and the appearance of impropriety in all of the judge's activities."  And Canon 4 cautions judges to conduct their "extrajudicial activities as to minimize the risk of conflict with judicial obligations."  Would lying fall into that category?  I know, it all depends on the lie.  But because judges decide credibility issues, Canon 2 should give judges pause now and then.

As I discussed in my last column, the New Jersey Supreme Court ruled that a part-time municipal court judge could not serve in that capacity and be a stand-up comedian in the evenings.  The court reasoned that this particular extrajudicial activity, among other things, demeaned his judicial office in violation of certain canons of judicial conduct.  I assume the satirical character he created for his comedy act, an obnoxious homophobic bar patron, had something to do with the court's decision.

Judicial service is gratifying and rewarding, but ethical canons necessarily limit our actions.  I am not complaining mind you, but lawyers apparently have less formal constraints in their everyday lives.  Ethical rules for lawyers generally relate to the practice of law.  I particularly like California Business and Professions Code section 6068(b), "To maintain the respect due to the courts of justice and judicial officers."  A similar notion can be found in the American Bar Association Canons of Professional Ethics.  Canon 1 admonishes lawyers to "maintain towards the Courts a respectful attitude .…"

If we took a random sampling of judges and lawyers and placed them in the earlier scenarios I posed, how do you think they would decide the moral questions?  No doubt there would be little difference between the two groups.  If judges fared slightly higher on the moral scale, it might be because of their awareness of the judicial canons of ethics that speak to a judge's extrajudicial conduct. 

In the next example I offer, we need not refer to canons of ethics.  I recently purchased an electronic keyboard and an amplifier at a store that sells those kinds of things.  The corporation that owns the store apparently operates under the firm conviction that customers patronizing the store are thieves. 

Parcels leaving the store are thoroughly examined, and after purchase, one's sales slip and the items purchased are thoroughly checked against each other by an unsmiling attendant.  Yes, I understand, many businesses operate under this assumption.  It is a "sign of the times."

My salesperson, who thought I was Methuselah, suggested I purchase an "insurance policy," not to be confused with an extended warranty, on the products I had just purchased.  But I asked my 14-year-old salesperson, "Why would I need such a policy when you just told me the products I purchased were durable and well made?"  The sales boy patiently replied, "When a new model comes out, you can turn in your old damaged one and get a new one."  "But what if it's not damaged?" I asked.  The look on his youthful face was one of incredulity.  He looked up at the ceiling before responding to the naïve question the elderly gentleman had just asked.  "Oh, it is bound to be and then you can get a new one."  I expected a gentle pat on the head.  And then it all made sense.  If you shop at a store that assumes you are a thief, you might as well act with the character of a thief and damage the product to get the newer model. 

         Most people I know, whether they are lawyers or judges, would pass on the insurance.  And how would someone even go about "damaging" an electronic keyboard or amplifier?  (Just kidding.) 

No matter.  This illustrates pervasive cynicism these days about the choices we make or are expected to make.

Why is this is happening?  Justice Antonin Scalia offered an answer.  In an interview with Jennifer Senior in New York Magazine last month, he unequivocally stated he believes in the Devil.  Though I seldom agree with Justice Scalia, I think he has been unfairly ridiculed for his belief.  Justice Scalia's Devil is for me a metaphorical concept, but no less real.  The Devil represents the tempting shortcuts that are offered on our journey through life.  So if we truly value our professions and ourselves, we will take a moment for reflection when we make our choices.

You Don't Have To Jump Out of an Airplane

When a joke takes the form of a riddle that begins with a question ("How many…?"), you know that a particular nationality, group or profession is in for derision.  Lawyer jokes are a typical example.  Thank heavens you do not hear them as often as you did in the past.  In the early 1990's, they were ubiquitous and iniquitous.  Harvey Saferstein, the State Bar president at that time, tried to blunt the onslaught with an editorial condemning the jokes.  It was a valiant but unsuccessful effort.  Of course I was deeply concerned about the unjustified flood of tasteless jokes about the legal profession.  Judges likely would be next.  I sensed the waters lapping against the courthouse steps.  Luckily the storm petered out, and the judiciary decided its cases relatively unscathed.  After the U.S. Supreme Court decided Citizens United v. Federal Election Commission (2010) 558 U.S. 310, however, I expected to hear a joke along these lines:  "How many Supreme Court justices does it take to weaken, if not destroy, our democracy?"  But perhaps the radical nature of the decision left people too stunned to joke.

Today other professions are in for ridicule.  It is de rigueur to bully viola players with offensive viola jokes.  Take for instance:  "How is lightning like a violist's fingers?  Neither one strikes the same place twice."  Or, "What is the difference between a viola and an onion?  No one cries when you cut up a viola."  Or, "What is the difference between a violist and a dog?  A dog knows when to stop scratching."  I am particularly offended by these jokes, because distinguished Los Angeles County Superior Court Judges Helen Bendix and Mary House are accomplished musicians, both of whom play the viola uncommonly well.  They are members of the Los Angeles Lawyers Philharmonic.  How unfortunate there is no Viola Players Association to which they could turn to defend their instrument of choice.  If only Harvey Saferstein played the viola.

I raise this subject to illustrate that numerous lawyers and judges have demonstrated extraordinary talents in areas other than law.  Retired Judge Aviva Bobb plays in the first violin section of the Lawyers Philharmonic.  Administrative Law Judge Stuart Waxman plays percussion in the symphony and vibraphones with a trio that performs regularly in clubs.  My colleague Justice Steven Perren is a fine singer and actor who has appeared in numerous theatrical productions and will be appearing this month in the Cabrillo Music Theatre production of "Kiss Me Kate" in Thousand Oaks.  And extracurricula activities are not limited to the performing arts.  Judge Anthony Mohr is a talented and successful short story writer.  Retired Supreme Court Justice Armand Arabian has parachuted out of airplanes with members of the military in friendly foreign countries.  Los Angeles County Superior Court Judge John Wiley sent me a photo montage of his perilous rock climbing expedition‑‑an endeavor almost as terrifying as deciding a summary judgment motion.

But getting back to the viola.  A wonderful defense of the viola appears in an article by Helen Campbell in the summer 2013 edition of the classical music magazine Listen.  Ms. Campbell describes the technical challenges facing violists.  She explains how the viola fills an important "supportive" function in the orchestra, "which means they fill in or double the harmony" when required.  What is particularly significant is that Ms. Campbell is not just a former professional violist, but, get this, "a former practicing attorney."  I can't say, but perhaps the viola and lawyer jokes drove her out of those professions.

Listen also featured an article about the famous pianist from Texas, Van Cliburn, who won the piano prize at the International Tchaikovsky Competition in Moscow in 1958 when the "cold war" was at its hottest.  Van Cliburn, who died in February of this year, hosted several piano competitions, one of which was an amateur competition held every four years in Fort Worth, Texas. 

A friend of mine, Lori Miller, produced an excellent film, "They Came to Play," about the fifth amateur competition in 2007.  The best performance of a post-Romantic work went to Mark Fuller, a litigation lawyer from Phoenix, Arizona.  And one of the second-stage semifinalists in the 2002 competition was U.S. Administrative Law Judge, J. Michael Brounoff.

Lawyers and judges do extraordinary things and demonstrate a wide range of talents.  But there are constraints.  Most of you have read about New Jersey lawyer Vince Sicari, who sits part time as a municipal court judge.  Not any more.  The New Jersey Supreme Court in a 7-0 decision held that Sicari's comedy and judicial career were incompatible and that he could not serve as both a municipal court judge and a comedian.  The court opined, among other things, that his comedic role as homophobic bar patron, for example, ran afoul of several Canons of the New Jersey Code of Judicial Conduct.  Canon 5 requires a judge to conduct extra-judicial activities in a manner "so that they do not:  cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties."  Sicari made the either/or choice in favor of show business.  You don't think writing a column...?  Let's not go there.  Forget I mentioned it. 

Retired California Judge John Rafferty does stand-up comedy with an "I was a judge" theme.  He relates amusing incidents in his courtroom over the past 25 years.  He wears a robe for the act.  Not sure if that is a good or bad thing.  But no matter, because he can satirize with impunity.  If someone doesn't like it, there is no bench off of which he can be kicked (or is it "which he can be kicked off"?).

So what do lawyers do who are not musically inclined, or are not cut out for repelling down cliffs or jumping out of airplanes?  How about pro bono service?  Professor Deborah L. Rhode points out in her article "Pro Bono in Principle and Practice," in the September 2003 edition of the Journal of Legal Education, that "[a] wide array of studies find[s] that regular volunteering is correlated with both physical and mental health.  Compared with the population generally, people who regularly assist others … have longer lives, less pain, stress, and depression." 

Case in point.  John Sharer, retired senior partner with Gibson, Dunn & Crutcher, was a prominent civil law litigator who tried a variety of cases in courts throughout the country.  He now teaches a litigation course at Pepperdine School of Law.  He wrote an engrossing novel set in World War II, "Honor Knows No Borders."  And he recently offered his pro bono legal services to win a new trial in a capital case in Alabama for a defendant convicted of first degree murder.  It is obvious to me that John believes in his client's innocence.  John does not display enthusiasm with abandon, but the inner satisfaction he feels from this significant victory shows.

This all serves to illustrate that although we are often defined by our professions, our lives, both professional and personal, can be significantly enriched when we pursue those other interests that arouse our passions.

I Am Not a Crook

I am not a crook.  These words were spoken by President Nixon in November of 1973 during the Watergate scandal.  In a telecast to the nation, he tried to assure the American public, and the 400 Associated Press managing editors lobbing questions at him, that he had never profited from his position in public office.

         You will note my opening sentence is not in quotes.  I am borrowing these words from Nixon and adopting them as my own.  I would have much preferred something like "Four score and…" or "We have nothing to fear but…" or "Ask not what you can do for your country…."  But these elevated quotes do not fit my predicament.

         Before I explain, let me tell you the good news.  All of us in the legal profession who are older than 50 are not senile after all.  I have it on good authority that the State Bar does not think so.  My column last month scored the State Bar for suggesting that senior lawyers need to be aware of signs of mental impairment.  My column generated dozens of responses from senior lawyers all over the state.  But we can call off the protest march and throw away the placards.  Pat Kelly, the State Bar president, who I have known for years, and who is older than 50, called me and explained it was all a mistake.

         In an e-mail, Kelly wrote that he "started the Senior Lawyers Working Group to explore ways to help Senior lawyers."  Apparently some young upstart, a witness at the board meeting, suggested "cognitive testing at some age."  No one on the board accepted this recommendation.  And medical experts did not recommend that any test be done at any age.  Kelly wrote, "Thus at this point there is no board proposal to undertake testing at 50 or any other age."  Whew, what a relief!  I am wary, however, of the words "at this point."  But for the time being, I will stay calm.

         Pat and I recently relived our youth when we performed together before a live audience.  He once played guitar with the Beach Boys.  Pat, along with the Big Band of Barristers conducted by Gary Greene, and me accompanying, or should I say pounding on the piano keys ala Jerry Lee Lewis, performed a Beach Boys medley arranged by Jerry Ranger.  Luckily, the audience's thunderous response saved us from compelled confinement for psychological observation.

Ironically, the previous column I wrote highlighted my own cognitive disability.  Retired Judge Arnold Gold called me and, with tongue in cheek, said he caught the mistake I had deliberately slipped into the column to test my readers' intelligence.  With a rhetorical flourish, I said that I was "10 and 5 years older than 50…."  Judge Gold immediately caught the error.  My math was off by 10 years.  But not to worry.  Judge Gold is older than I.  This proves that age enhances wisdom.

One of our country's premier judges, and the oldest sitting judge in the nation, Federal Judge Ruggero J. Aldisert, Chief Judge Emeritus and Senior U.S. Circuit Judge of the Court of Appeals, Third Circuit, is 93, still hears cases, and still publishes.  And he is as brilliant as ever.  The third edition of his masterful work Opinion Writing was published by Carolina Academic Press last year.

But back to why I am not a crook.  It appears that CalPERS, the California Public Employees' Retirement System, believes that I and the thousands of other state employees and our dependents who are in the CalPERS retirement and health insurance program just might be crooks.  They want assurance that our dependents who are on the plan are legitimate subscribers.  Nothing wrong with assuring that the plan's costs are kept in check.  But CalPERS has gone about its task of oversight by requiring its members to prove their dependents are legitimate.  In the case of a spouse who is a dependent, CalPERS requires a copy of the marriage certificate, and a copy of the front page of your 2012 tax return or a recurring bill no older than 60 days that lists your spouse's name, as well as your own name.  And if a member fails to meet these requirements by September 15^th, their dependent will be dropped from coverage.  It does not matter that the "dropped" dependent is perfectly legitimate and that all premiums have been paid for that dependent to be on the plan.  And the cost of obtaining the material required is a burden to be borne of course by the employee. 

         In its zeal to save money, CalPERS has spent money, our money, to hire HMS Employer Solutions, "an independent third-party," to ferret out the scofflaws who are wrongfully listing non-eligible dependents.  CalPERS informs us that HMS "specializes in verifying health plan eligibility and has reviewed verification documentation for hundreds of thousands of dependents for some of the largest employers in the United States."  I wonder who are those large employers. 

         So how much is CalPERS paying HMS?  And will the money CalPERS claims it will save by ridding itself of illegal dependents be more than what it is paying HMS?  Or is this a contingency deal in which HMS makes its bucks by the more dependents it cuts off? And do the geniuses at CalPERS who dreamed up this scheme actually believe that they will win the lawsuit just itching to be filed?  Think it likely that a legally proper dependent may be denied benefits because the employee failed on September 15th to prove to HMS's satisfaction that the dependent is legitimate?  And if the dependent is denied urgently needed medical treatment for which the spouse has paid all necessary premiums to be on the medical plan….  Oh, I shudder to think of the result.  Darn.  It just occurred to me‑if I were assigned to hear such a case, I wouldn't put it past CalPERS or HMS to move to recuse me.

         Needless to say, I am frustrated and need an outlet.  Think I will write a concurring opinion. 

Redemption

There is an insidious movement in the legal profession to undermine the elderly.  I read about it in the Daily Journal.  A State Bar panel is poised to require "older" lawyers, beginning at age 50 (the eligibility age for AARP), to take a mandatory continuing education course on recognizing cognitive impairment.  Presumably this is based on the premise that with age comes mental deterioration.  So, if the codgers and mature ladies who must take the course are more likely to be mentally impaired, how will they ….?  (I don’t have to finish the thought, do I?)

         Perhaps the rationale is that at age 50, lawyers are on or approaching the cusp of senility, and can be taught to recognize the symptoms when they strike with full force.  But as I implied in the preceding paragraph, it may be too late by then.

         Whatever the rationale, I take umbrage at this misguided assault on those lawyers who should be revered for their wisdom born from experience and maturity.  No, my age has nothing to do with my indignation.  But is it not likely that the next hapless group to be targeted for age-related cognitive impairment is … judges?  A person younger than I might have written "are … judges."  Why must our American culture, unlike others, idolize youth and disparage the elderly?  I offer a few personal examples to illustrate that senior citizens deserve veneration, not disparagement, and that those of us of mature years make rational decisions.

         Last year you may recall my August column was devoted to a discussion of the Higgs boson to help us understand how the physical universe works.  And this in turn led me to a discussion of our moral universe occasioned by an age-related incident on July 4^th, 2012, the same day of the Higgs boson discovery.  It occurred on the 35th annual Will Rogers 10K-5K 4th of July race. 

         I was signed up for the age 70 to 74 group of runners, or so I thought.  I was reputed to have finished 3^rd in my age group, which entitled me to a bronze medal.  Just after receiving my medal‑‑which resembles a miniature manhole cover and hangs from a patriotic red, white and blue ribbon‑‑I discovered that I had been mistakenly placed in the 75 to 79 group of runners and, in fact, had come in 4^th in the age group to which I should have been assigned.  Only the first three fastest runners are entitled to a medal.  Laggards come in 4th.

         I immediately informed race officials of the mistake and, like a disgraced military officer whose ribbons are ripped off his coat, I tore from my neck my medal and handed it to Mike, the race official.  Mike praised me for my honesty for which I felt no kudos were necessary or warranted.  The guy in my age group who thought he had come in 4^th got the medal he deserved and I slept well that night. 

         So this takes me to July 4^th this year and another age-related incident.  I once again entered the Will Rogers 10K-5K race in Pacific Palisades, this one being the 36th annual.  You see, this year I am in the 75 to 79 age group, one of nine stalwarts.  I thought I had a good chance to legitimately win a medal because, even though I was a year older (and no doubt mentally impaired according to the State Bar), I was in the youngest (not an oxymoron) category in my new age group.  Surely such logic reflects mental acuity, not impairment.

         Like the year before, I opted for the 5K, another example of clear-headed thinking.  At the sound of the gun, I broke into a moderate jog, with a view to conserving my energy for the final mile and the hill that preceded it.  I would hardly term such strategy muddled thinking.  My time for the first mile was almost a minute faster than last year.  I felt buoyed by the likelihood of vindication and redemption.  I came in second.  No matter that the guy who came in first wiped me out.  I accepted my second place silver medal with a degree of humility.  The photo reflects a moderate degree of hubris on my part, while No. 1 graciously looks on. 

Please do not ask my time.  But when I passed the finish line, the winner was on the plane back to Kenya.  Mike, the race official, was there again, and he gave me a high five.  Last year he praised me for my integrity.  This year he praised me for a legitimate win‑‑the product of strategic planning from a senior 10 and 5 years older than 50 and not a drooling idiot. 

Sorry that my resentment shows, but I am seriously thinking about filing an age discrimination suit.  But then I would have to recuse myself from hearing the case, another example of my ability to think things through.  I know, such case is not ripe.  And I have not done well lately with cases in which I am a party.

But I do keep in mental and physical shape.  I read that those who work out with weights and who spend time with animals are stronger in body and calmer in temperament.  Most of you know about my cat Powell about whom I have written extensively.  He is overweight and I have done everything short of starving the poor guy to keep his weight down.  But then it occurred to me how I could simultaneously work out and spend time with my cat.  Pardon the expression, but I thought of a way to kill two birds with one stone.  I do repetitive curls using my stout cat for the bar bell.  While I work up a good sweat, he purrs.  So please do not fret about the mental acuity of our older lawyers and judges. 

Enough said.  Got to go now.  It's time for bingo.