Baring Equality

The cases of a young defendant and a repeat offender attorney show power and privilege tip the scales

California's legal system is so skewed toward insiders that a young man busted for reefer can be barred from being represented by an attorney, while a convicted forger who a court says wrongfully took a client's money not only gets to be represented by an attorney -- he gets to reapply to become one after being disbarred.

A pair of San Francisco court cases scheduled to be resolved this fall illustrate opposite ends of a phenomenon I'll call privilege drift, in which groups of people who know the system, have the money to game the system, and possess the political power to manipulate how the system works are accommodated by our government in extraordinary ways. Those without insider knowledge, money, or clout, meanwhile, can encounter laws and policies seemingly contrived to make them more powerless still.

In one case, a San Francisco Superior Court judge is evaluating a state prisons policy that denies young parolees the right to an attorney at parole revocation hearings, except in rare cases where they're diagnosed as mentally retarded, or when state prison bureaucrats deem their case extraordinarily complex.

"They hand down the charges on a Friday, and they expect him to represent himself at a hearing on a Tuesday, where he could face 10 months in custody," said San Francisco Public Defender Jeff Adachi, who wishes to represent pro bono Will Roy, a 24-year-old who was accused of toking up while still on parole from juvenile hall.

Last month, thanks to Adachi's advocacy, a judge ordered the California Attorney General to prove that this policy doesn't violate Roy's constitutional right to due process. A hearing to review the policy is scheduled for the end of this month at San Francisco Superior Court.

In a case two miles across town at the State Bar offices on Howard Street -- and at the other end of the world of privilege -- 67-year-old defense attorney Frank Prantil is facing a task he's already performed numerous times -- defending himself against accusations that he's acted unethically as an attorney. In 1979, Prantil was suspended from practicing law after he was accused of improperly representing a client. While on probation, Prantil was alleged to have participated in a check-fraud scheme. He was convicted of forgery and disbarred, according to the California Supreme Court opinion confirming Prantil's disbarment.

Prantil later took advantage of California rules that allow disbarred attorneys to ask for reinstatement after five years. Prantil successfully argued that he had rehabilitated himself, and resumed practice in 1994.

Prantil is now facing State Bar disciplinary charges, which could potentially get him disbarred again, alleging that he failed to competently defend a client, then improperly charged the client for his services.

Prantil's case, along with three cases decided earlier this year in which California attorneys were disbarred for a second time, has added steam to a nine-year-old bureaucratic proposal to give judges the option of disbarring the worst attorneys for life.

In California, there now exists no legal concept of permanent disbarment. A State Bar committee on Nov. 15 will consider the possibility of changing that, if only slightly. Rather than making all disbarments permanent, it would extend from five to seven years the amount of time disbarred attorneys would have to wait before requesting to be reinstated, and would give judges the option of forever banishing the worst of California's worst attorneys.

The fact that it's taken nine years for such a mild proposal to reach this preliminary step hints at a lack of seriousness the California legal establishment lobby applies to abuses by its own members.

When viewed beside the case of Will Roy, however, the slow-moving disbarment proposal illustrates how the guards and apparatchiks who run our state prison system, and the lawyers and apparatchiks who run our legal system, have pushed California criminal justice far from the democratic ideal, in which everyone has comparable access to fair treatment under law. In a system where an apparently ethically challenged lawyer benefits from an extraordinary string of second chances, while an unsophisticated young toker is railroaded sans counsel into jail, equal access to legal protection has clearly broken down.

In the case of Will Roy I think it's fair to say the state failed in its role as custodian of a wayward youth. Now that the prison system wants to jail him again for supposedly violating parole, the state has become his adversary -- meaning that, by any reasonable estimation of fairness, Roy should have the right to an attorney.

"What happened was, I got out of the California Youth Authority in April 2003, and I was on parole for two and a half years, doing good," said Roy.

While recovering from knee surgery, he suffered migraine headaches, which were eased by marijuana, Roy said, so he went to a prescription mill doctor in Oakland, got a state pot card, lit up, and thus failed a parole-mandated urinalysis. Neither Roy nor Adachi would discuss with me the charges that first led to his being jailed. But an AP story covering a protest against the California Youth Authority last year profiled Roy, who, the story said, was admitted at age 16 for robbery, then drew an extra year for fighting, and another year for smoking smuggled marijuana, for a total of six years.

Before surrendering himself, Roy sought the advice of San Francisco Public Defender Jeff Adachi, whom he'd met at several criminal justice conferences. The resulting delay, combined with a scuffle Roy got into with a friend on a juvenile hall basketball court while awaiting a hearing, form the basis of charges that could earn Roy nearly a year more in jail, in a case first described in The Recorder, a legal newspaper.

Adachi sent a letter to the prisons department arguing that Roy was in compliance with state law allowing medicinal use of marijuana. Department of Corrections and Rehabilitation attorneys are now struggling to draft an official policy accommodating California's medical marijuana law.

In the meantime, the state has dropped the marijuana charge, and now seeks to reincarcerate Roy based solely on the delay in surrendering himself and the basketball court scuffle, which a guard had quelled using mace.

Roy should be capable of defending himself against these charges, said Department of Corrections and Rehabilitation spokesman Tip Kindel.

"If you have the ability to go in and articulate that for yourself and understand what is going on, really there's no need for an attorney," Kindel said.

This is nonsense, of course. The multiple legal questions underlying Roy's case are complicated enough to have already occupied many attorney hours. Last year, California's prisons system settled a class action lawsuit with attorneys representing adult parolees, who said the state's previous policy of denying convicts the right to counsel at parole revocation hearings denied their constitutional right to due process. Now, the state provides parolees with court-appointed attorneys at such hearings free of charge.

But "the only members of the class were adult offenders," Kindel said. "It's not required [for juveniles], so why would that be something that would be done?"

That's easy: because railroading kids faced with jail time just because you can is the action of a bully state.

Legal filings chronicling the 41-year, on-and-off legal career of Sacramento general practitioner Frank Prantil suggest an unwavering faith among members of the State Bar bureaucracy in the potential for human redemption.

In 1979 a court determined that Prantil had improperly gotten his hands on $5,000 of a person's money, whom Prantil inaccurately claimed to be his client, according to the state court opinion confirming his disbarment.

The California State Bar Disciplinary Board suspended him, then immediately converted his suspension into a six-month "probationary" period during which he was allowed to continue practicing law.

The decision earned the following dissent from a panel judge: "The net effect of the board's order, upheld by the majority, is to impose no actual discipline whatever in this case."

Two years later Prantil was alleged to have aided some accused bank robbers he was representing in a check-kiting scheme. He was convicted of forgery, disbarred, and sentenced to two years in prison. In an unrelated case, he was convicted of perjury and of being an accessory after the fact in relation to an alleged cocaine conspiracy led by another client, according to court filings.

His perjury and accessory convictions were overturned based on the idea that the behavior of the assistant U.S. attorney who prosecuted him prejudiced Prantil's right to a fair trial.

The U.S. attorney in the case indeed seemed to go overboard, according to the Ninth Circuit Court of Appeals opinion overturning his conviction. Something about Prantil's case indeed seemed to drive the assistant U.S. attorney overboard. A recurrent theme of the prosecutor's summation was to portray the defendant as "greedy," "corrupt," "dishonest," and "sleazy," the opinion said.

Five years after he was disbarred, Prantil applied to be reinstated based on the idea that he'd reformed himself. In 1994 he was readmitted to the Bar.

In a case now before the State Bar Court, Prantil is again alleged to have inadequately represented clients. Charges claim he let a deadline pass for an accused murderer's habeas corpus petition as he held out for more money from the client. When the suspect's mom complained to the State Bar, Prantil tried to cut a deal by which he would represent her for free if she withdrew her complaint, state disciplinary charges allege. This kind of deal is barred by law.

For his part, Prantil says any delays in legal filings were the result of time he spent drafting and preparing petitions, obtaining signatures for legal documents, and slow mail service.

"I have worked diligently in [sic] behalf of my client, but because I am a sole practicing attorney with a heavy load, I was not always able to draft a new petition to a higher court upon receipt of a denial from a lower court," Prantil wrote in response to the charges.

Prantil may well be right about this. The charges haven't yet been adjudicated.

However, neither Prantil, nor his potential clients, nor our legal system need have suffered this kind of pain. Had Prantil been forced to move into a different line of work back in the 1980s after he went to the slammer for forgery -- in other words, if California's rules regarding disbarment actually had teeth -- a lot of public expense, and private pain on the part of potentially harmed clients, might have been avoided.

Jerome Fishkin, a San Francisco attorney who specializes in representing other attorneys, says he'll fight the move to strengthen disbarment rules.

"We all know people who've gotten in trouble, we all know people who've put it back together," he said. "If a taxicab driver is in a bad accident, do you permanently take away his license, or do you let him come back 10 years from now? Do you let him rehabilitate himself?"

Hogwash, says Wendy Borcherdt, who served on the State Bar's Board of Governors during the 1990s and recently wrote an essay for the California Bar Journal arguing in favor of permanent disbarment.

"A taxi driver is not charged under a sworn oath to uphold the system of laws in our justice system," Borcherdt said. "An incredibly small percentage of the abusive attorneys end up in disbarment. It is usually for repeat offenses. And they have prior warnings, and they keep injuring their clients."

I'd favor tossing the taxicab standard and replacing it with one that contemplates privilege drift when considering how much of an additional fair shake any person deserves. A lawyer who knows the legal system inside and out, yet seems to somehow fall afoul of it time and again -- does he really need to stay in the same, overcrowded line of work? And is it really necessary to shove a young toker back in jail without at least giving him a fair chance to defend himself?

Not in a truly democratic California.

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