BOGO And A DOJ No-Go

I haven’t written about my state bar for some time, figuring I would give it a break after the Tom Girardi FUBAR. (And give my editor a break as well.) However, I can’t resist writing about the California State Bar’s latest snafu: the February bar exam held this week.

Are you familiar with the term BOGO? It’s a common marketing term meant to entice retail purchases: Buy One, Get One. The California State Bar has its very own BOGO now. It FUBARed (yes, a new verb) the February bar exam, so it is now offering those who took the February bar exam (February 25 to February 26) and did not pass (or who withdrew in advance from the exam) spots in the upcoming July bar exam without charge. The bar is falling all over itself in apologies, as well it should … mea culpas from an institution not known to readily take responsibility for screwups. And this one has been a doozy. Imagine the angst for test takers, the last thing they needed in a situation that piles on further stress. (By the way, the California Supreme Court had approved the bar’s trolling for a new vendor for the bar exam after the court nixed the bar’s intention to rely on Kaplan.)

Now what? What’s the plan for the July bar exam? Kaplan? In house? Consider the NCBE alternative? At least the bar is accepting responsibility for the snafu, unlike the finger pointing already arising out of the LA wildfires. 

However, I don’t share Joe Patrice’s optimism that eventually these snafus will “ultimately make for a better licensing exam.” Joe hasn’t spent the past five decades as a licensee (fka member) of the California Bar watching its antics on so many occasions trying to get things right and failing. I could provide a couple of recent examples, but I will spare you.

From BOGO to NOGO: what would you do in this situation? Your boss or your boss’s boss or your boss’s boss’s boss, whomever, you get the picture, wants you to handle a particular case in a certain way, a way that you think is sideways to your ethical responsibility. What to do? Acquiesce to the “command and control” of your senior lawyers or resign?

Sometimes, new lawyers think that the professional responsibility exam is a one-off and that, once they are practicing lawyers, they can shelve what they crammed for the night before the exam. Au contraire. It’s in the real world of practice that the rubber (ethical questions) meets the road (what to do).

Example: The attorney has not been paid, or the client sees the case very differently than counsel. There are limits on what can be said without violating attorney-client confidentiality. So, in a motion to be relieved, there will be language such as “irreparable harm” or “the relationship has broken down irretrievably” or something similar that alerts the court that the relationship has tanked for good. Sometimes the court will relieve counsel but not always. Timing is a consideration. The closer to trial, the less likely the relief.

The resignations of seven DOJ attorneys in response to the order from above to dismiss the Eric Adams criminal case is a recent example (“ripped from today’s headlines,” so to speak). Some might argue that these attorneys were insubordinate in refusing to follow the order from on high. That may well be the position of some who would tell them “not to let the door hit you on the way out.” What is the ethical thing to do when you disagree with an order from a superior and can’t in good conscience represent the client?

Exactly what these lawyers did, they resigned rather than comply. They resigned rather than taint their reputations, which, as we all should know, is the only thing that lawyers truly possess. (Clients come and go and could care less about our ethical responsibilities.) The district court indicated that it would not just rubber stamp the DOJ’s request for dismissal of the Adams indictment. A hearing is set for March 12 where District Court Judge Dale Ho should receive a report from former solicitor general Paul Clement appointed by Ho to look into this mess.

As lawyers, we swore that we would protect and defend the Constitution of the United States and whatever state constitution applied, and to faithfully discharge our duties as lawyers. Does the oath now mean subservience rather than detached independent service on the client’s behalf? I wonder what law professors are teaching their students now. 

Jill 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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