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 wofds, 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 [415]Claremont (1953) 41 Cal.2d 70, 80 [256 P.2d 977]: “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, section 6067, provides: “Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.” Clearly that is not much of a guide in this case.
Subdivisions (b), (d) and (f) of section 6068 read: “It is the duty of an attorney: ...(b) To maintain the respect due to the courts of justice and judicial officers.... (d) To employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law... .(f) To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged.”
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 [416]Court of Appeals’ reversed a decision of the Superior Court of Siskiyou County entered in favor of Respondent’s clients.
“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’ [¿ic] 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:
[417]“(g) ‘But when a judicial officer has acted outside of his jurisdiction and falsified the record to do so, and this deprives a citizen of his property and property rights, judicial immunity should not bar the remedy even though the officers be immune from personal liability.’
“(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. [If] 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] [418]did commence a suit in the Superior Court of Siskiyou County California for foreclosure against Plaintiffs and attempted to take Plaintiffs entire properties and in said suit Plaintiffs did counter-sue for their damages as aforesaid.... [If] A jury was empaneled to try contentions of the Parties, was instructed by the Trial Court upon instructions agreed to by respective counsel for Plaintiffs and Defendant KPCA and given the jury form agreed upon between the Parties, after deliberation returned a verdict finding KPCA guilty of deceit and undue influence and awarding Plaintiffs damages in the sum of $60,000.00 general damages and $5,000.00 punitive damages against [KPCA, (If) which then] appealed to the Court of Appeals, Third Appellate District... upon the grounds that punitive damages were not allowable against a Federal Agency, and that evidence relating to punitive damages tainted the verdict. The transcript on appeal omitted the discussions and agreements between counsel and the Court (although same were reported) relating to instructions and the verdict; no argument was presented to the Court of Appeals relating to instructions or verdict by either counsel and the question of instructions and verdict was not otherwise presented to the Court of Appeals.... [If]... Defendants Friedman, Puglia and Regan under the color of their office as Justices of the Court of Appeals... did reverse Plaintiffs aforesaid judgment contrary to California law and precedent prohibiting retrial of facts tried by a jury, restricting appeals to those matters lawfully before the Court, and limiting the reversals to unjust results... .[¶] The aforesaid acts of the aforesaid Justices unlawfully acting under the color of their office has deprived the Plaintiffs of their property and the use thereof without due process of law; and unless they are restrained from enforcing said Order, Plaintiffs will be permanently and irreparably damaged in the loss of their ranch and properties in the award for damages previously obtained together with their costs of suit including reasonable attorney fees.... [If] [KPCA] in prosecuting said appeal totally lacking in merit, and in taking advantage of the illegal acts of the Defendants, Friedman, Puglia and Regan, did and will cause Plaintiffs loss of income in excess of $20,000.00 per year commencing with 1974 through the time of trial herein.”
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[419]deserved-unblemished reputation” were lifted out to bolster the conclusions (in findings VII and VIII) that petitioner evidenced “his opinion that the Justices are part of a conspiracy to defraud his clients,” “falsely maligned three Justices,” and “accused [them] of a crime, to wit, theft.”1
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.” (Bus. & Prof. Code, § 6068, subd. (f), supra; see too Prosser, Handbook of the Law of Torts (4th ed. 1971) p. 748: “One obvious rule.. .is that an entire writing.. .must be construed as a whole. The plaintiff may not lift words out of their context, and the defamation contained in one line may be negatived or explained away by what appears elsewhere.”)
[420] Liberty of speech
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 Business and Professions Code sections 6068, subdivisions (b), (d) and (f), supra, should remember that section 2 of article I of the California Constitution states: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”3
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 [85 L.Ed. 1429, 1435, 61 S.Ct. 999], [421]regarding “a practice familiar in the long history of Anglo-American litigation, whereby unsuccessful litigants and lawyers give vent to their disappointment in tavern or press.”)
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.” (Code Civ. Proc., § 1209; cf. Edgemon, Verbal Misconduct in the Courtroom—Are Attorneys Immune? (1970) 11 Santa Clara Law. 125; Farber, Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan, and the Enduring Significance of Cohen v. California (1980) Duke L.J. 283, 303.)
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 Code of Civil Procedure section 1209, supra. (Matter of Shay (1911) 160 Cal. 399, 407 [117 P. 442].) Yet even if we were to ignore the free speech developments that began in the following decade (the 1920’s), the Shay interpretation of that code section (160 Cal. at pp. 406-407) should not, I believe, survive the perceptive response of Justice Angellotti and Chief Justice Beatty, the dissenters in Shay. (Id., pp. 408-410; cf. Edmonds, J., dis. in Hume v. Superior Court (1941) 17 Cal.2d 506, 516 [110 P.2d 669]; Bridges v. California (1941) 314 U.S. 252 [86 L.Ed. 192, 62 S.Ct. 190, 159 A.L.R. 1346] [reversing Bridges v. Superior Court (1939) 14 Cal.2d 464, 479-484 (94 P.2d 983), and The Times-Mirror Co. v. Superior Court (1940) 15 Cal.2d 99, 102-103 (98 P.2d 1029)], which in fn. 3 (314 U.S. at pp. 260-261 [86 L.Ed. at p. 202]) states; “[T]he only evidence we have of the California legislature’s appraisal indicates approval of a policy directly contrary to that here followed by the California courts....”)
Also meriting emphasis is the dissenting opinion of Mosk, J. (Tobriner, J. cone.) in In re Buckley (1973) 10 Cal.3d 237, 259 [110 [422]Cal.Rptr. 121, 514 P.2d 1201, 68 A.L.R.3d 248], which quotes both Craig v. Harney (1947) 331 U.S. 367, 376 [91 L.Ed. 1546, 1552, 67 S.Ct. 1249] (“[T]he law of contempt is not made for the protection of judges who may be sensitive.... Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”) and Professor Max Radio’s Freedom of Speech and Contempt of Court (1942) 36 Ill.L.Rev. 599, 611 (“It is.. .not a legal duty to be well mannered and it may even be said that it would be unconstitutional to make it one.[If]...[T]here is no reason why the dignity of the court should take such dimensions or assume such a character that it demands awe or veneration.”). Justice Mosk stressed Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 795-796 [192 P.2d 905], where Justice Traynor stated; “Attorneys must be given a substantial freedom of expression in representing their clients. ‘An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge or Judges....’ (Oswald, Contempt of Court (3d ed.), pp. 56-57. [Citation]).”
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 [423]Hogan as a sufficient response to free speech arguments when neither the First Amendment nor article I, section 2, of the California Constitution was even mentioned. (Cf. Black, Attorney Discipline for “Offensive Personality” in California, supra, 31 Hastings L.J. 1097, 1106-1107, and also p. 1099: “By far the largest part of the rules regulating attorneys controls the content of communication or expression, rather than restricting non-expressive conduct. Thus, these restraints qualify for the strict scrutiny reserved for enactments abridging pure speech. [Fn. omitted.] Few of these enactments were devised to accommodate first amendment values and many probably are vulnerable to invalidation for vagueness or overbreadth. Unfortunately, instead of responding to these developments, to date the State Bar has defended the status quo tenaciously.”) I observe, though, that in Hogan the court’s handling of the libel law arguments (36 Cal.2d at pp. 810-811) is illustrative. of reasons why the State Bar’s and majority’s reliance here on Garrison, 379 U.S. 64 [13 L.Ed.2d 125, 85 S.Ct. 209], is inapt. (Cf. the dis. opn. of Brennan, J. in Time, Inc. v. Firestone (1976) 424 U.S. 448, 472 [47 L.Ed.2d 154, 173, 96 S.Ct. 958].)
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: [424]“‘Justice is not guaranteed in Miami,’ says Miami Times publisher. ‘If you get justice it’s an accident.’” (Cf. Fire and Fury in Miami (June 2, 1980) Time, at p. 10: “Strongest of the riot’s many causes was a sense of injustice.” See also, illustratively, the interview regarding current activities of the Mexican American Legal Defense and Education Fund employment litigation unit in 9 MALDEF No. 3 (1979) pp. 1, 5.)
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. [11] One of these reports... comes from the nation’s most articulate contemporary in-house observer, John Frank of Phoenix, Arizona. .. .[If] 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.’ [IT] 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: [IT] ‘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.’”
[425]In a current issue of the Stanford Law Review one reads: “Our courts are not just, and they are most frequently unjust when dealing with the most powerless defendants, the poor and the minorities.” (Mitchell, supra, 32 Stan.L.Rev. 293, 321-322; see also the book reviews of Hazard, Ethics in the Practice of Law (1978) by R. Kasanof (“The poor believe that the administration of justice is hopelessly weighted against them...”) and L. Nader (“The law is being used to benefit the powerful.”), 89 Yale L.J. 1438, 1442, 1449 (1980); cf. tenBroeck & Tigar (edits.) Law of the Poor (1966) 54 Cal.L.Rev. 319-1014; Higgins, Ardor in the Court (Mar. 1980) Atlantic, p. 73.)
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 procedings were resumed; and countless hours and resources of the bar, of Court of Apppeal 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[426]entious and zealous counsel once more are warned to watch their manners if they want to avoid trouble. And a large segment of the public, again, may see reason to suspect the vigor with which the interests of all Californians may be advocated before the individuals whose duty it is to provide justice for all.7
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 Business and Professions Code section 6068, subdivision (f), if his written arguments were ambiguous and perhaps carelessly so, and if thus he did arguably engage in “offensive personality,” nonetheless was it not because he believed it might indeed be “required by the justice of the cause with which he [was] charged”?
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....[1i]... .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.
Cf. the separate opinion in In re L. A. County Pioneer Society (1953) 40 Cal.2d 852, 874-875 [257 P.2d 1]: “I dissent from the order denying appellant’s petition for rehearing, and in view of the contention of appellant... that the effect of the decision of this court is to deprive it of its property without due process of law, I am constrained to comment.... [H] The record in this case presents one of the most outrageous examples of legalized larceny which has come under my observation.... [H] With respect to corporations, this court is empowered only to apply the statutory law of the state as it was written by the Legislature; it is not empowered to ignore the statutory provisions relating to corporations and effect a distribution of corporate assets as its collective whim may dictate.” (Italics added.)
See also Black, Attorney Discipline for "Offensive Personality” in California (1980) 31 Hastings L.J. 1097, 1133 (“the judiciary itself is not altogether innocent of offensive personality”).
“[I]f the process focused on defendants who came from a class of persons with political power, the power of those people could itself provide a check on the court and ensure the acquittal of the innocent. An example of this occurred during the 1960s when middle class white defendants flooded into the criminal process as the public demanded the arrest of illegal demonstrators and marijuana users. Once in the process, however, even the most minor violation arising out of a demonstration generally result[420]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.”)
In Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 81 [64 L.Ed.2d 741, 752, 100 S.Ct. 2035], the United States Supreme Court observed that the people of California in that section have conferred “individual liberties more expansive than those conferred by the Federal Constitution.”
This opinion addresses solely the attorney’s rights. Unjustified restrictions on his speech may, of course, in many situations deprive the client of due process rights.
Cf. In re Sawyer (1959) 360 U.S. 622, 628 [3 L.Ed.2d 1473, 1479, 79 S.Ct. 1376]: “We conclude that there is no support for any further factual inference than that petitioner was voicing strong criticism of Smith Act cases and the Government’s manner of proving them, and that her references to the happenings at the Honolulu trial were illustrative of this, and not a reflection in any wise upon Judge Wiig personally or his conduct of the trial.”
The reporter’s transcript totals 153 pages; the briefs, 60; the depositons, 93; and the 2 volumes of exhibits are VA inches thick.
Is it significant, some might ask, that California judges—unlike federal judges—do not take an oath that commits them to “Do equal right to the poor and to the rich”?