Before plunging into the substance of my comment about the Stephen Glass case, I first want to briefly state agreement with both Mitch Simon and Brad Wendel.
I agree with Mitch that the California Supreme Court, looking at the matter de novo, had ample reason to deny Glass admission. I also agree that the court “meandered,” somewhat unnecessarily, about Glass’s lack of fitness when it came to remorse or its absence, and the years of therapy Glass engaged in.
I also agree with Brad that the Milgram and Zimbardo (Stanford) experiments (I’m most familiar with those two) and others should teach us something about human behavior in group situations, particularly about the young and their tendency to fall into role or group-affected immorality or amorality. Just look at one of my heroes, Bobby Kennedy.
Moving on, my purpose here is inspired by my conversation with an experienced Bay Area reporter and observer of the Supreme Court who wondered how three very recent CA SC cases can be resolved doctrinally. In Glass’s case, the court took a firm view in rejecting rehabilitation. In Sergio Garcia’s case, the court allowed a person illegally in the United States to become a State Bar member (a decision, let me make clear, that I completely agree with.)
The third case is that of Gary Douglass Grant. Grant is an admitted sex addict who, among a large collection on his computer of adult porn, was found to possess some relatively few images of underage girls. Grant claimed, convincingly, that his possession of these underage images was inadvertent, that he attempted to delete them from his computer, and that he did not intentionally possess them. Nevertheless, he did plead guilty to one count of possession of child pornography in 2009.
The question before the state high court was whether possession of a single image qualifying as “child pornography” was moral turpitude per se, requiring Grant’s disbarment. The State Bar prosecutors argued that it was. The State Bar court appeals court held that whether Grant’s offense was moral turpitude per se had to be determined on a case-by-case basis and declined to disbar Grant, instead suspending him for two years.
The State Bar appealed and, as with Glass, the Supreme Court unanimously agreed with the bar, holding possession of child porn moral turpitude per se and then basing Grant’s disbarment on his guilty plea.
Is there doctrinal consistency among these three cases? Not much, in my view, at least on the issue of forgiveness and flexibility. In fact, the greatest consistency I see is that the court, in all three cases, followed the wishes of the State Bar or its Committee of Bar Examiners in presenting the case to the court. In both Glass’s and Grant’s case, they had “won” (Grant only relatively speaking) at the Bar Court level and the State Bar appealed.
If the Supreme Court is giving deference to the position of the State Bar’s prosecutors, what is their doctrinal consistency? As a long-time observer (and critic) of the bar’s Office of Trial Counsel, I again conclude “not much.” I do believe that unfortunately, OTC is swayed both because some cases have high visibility and by public opinion. There’s no way of proving that if Glass’s transgressions had occurred for the Podunk Times, hadn’t been turned into a movie, and were little known to the outside world, his admission would have slid on through. But based on anecdotal information over the years, I confess that I believe that would have been the case. Similarly, if Jerome Fishkin and others had not loudly beat the drum for Sergio Garcia, his case may have simply been turned down.
If I’m right – and I admit there’s definitely an “if” – this is a sad commentary on the way our State Bar prosecutors work. Nevertheless, as I’ve written on more than one occasion, I’ve seen too many examples of justice being unevenly applied by OTC depending on the status of the lawyer or applicant involved.