Oh boy, friends, a small setback in my ongoing project aimed at getting Carol Humiston, the world’s angriest CPRA lawyer, disgraced, disgruntled,1 and, of course, disbarred. As you may recall, she counseled her ne’er-do-well clients, the South Park BIDdies, to absolutely flout the law by violating the public records act in any number of really weirdly flamboyant ways. And I discovered this because the BIDdies were kind enough to waive any possible exemption claims, if there ever were any, to some emails in which Humiston discussed her advice with them and with others.2
And the California State Bar Association has a rule against this kind of thing, Rule 1.2.1, which states “A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.”. So, naturally, I reported Humiston to the Bar Association in April. Well, they finally got around to responding, and, sadly, they rejected my complaint with this spiritually bankrupt letter, basically claiming that (a) the evidence was all privileged so they couldn’t consider it and (b) they weren’t able to determine if the BIDdies had broken the law.
Of course, these reasons miss the point entirely, which is that (a) the BIDdies waived any privilege by releasing the emails freely and (b) whether or not the BIDdies broke the law is beside the point since the complaint was about whether Humiston told them to break the law. This can’t rely on them actually breaking the law, otherwise you’re going to have to allow lawyers counseling their clients to, e.g., lie in wait to kill and eat their enemies, and as long as the clients don’t actually do it the lawyers haven’t violated the Bar rule.
That can’t be right, so obviously my complaint was closed in error. So I wrote a lengthy and comprehensive appeal and sent it off to the head office up north in the City and County of3 and you can read transcribed selections below, and stay tuned for the latest news!
Transcription of the appeal:
1. Carol Humiston is an attorney licensed in California who advises the South Park Business Improvement District (“SPBID”) with respect to compliance with the California Public Records Act (“CPRA”).
2. On April 1, 2019 I filed a complaint with the California State Bar against Ms. Humiston, alleging that she advised the SPBID to violate the California Public Records Act, which is a violation of California State Bar Rule 1.2.1.
3. A copy of this complaint is attached as Exhibit 1 below on page 8. The Complaint Intake Department assigned the complaint Case Number 19-0-13431.
4. The complaint was based on a number of emails that I received from the SPBID in response to various CPRA requests.
5. On September 4, 2019 the Office of Chief Trial Counsel closed the complaint without action. A copy of the letter of closure is attached as Exhibit 2 below on page 33.
2 The complaint was closed in error
2.1 The source of the emails
6. The closure letter claims that I am “unclear as to the source of all the emails [on which the complaint is based], which is concerning.”
7. I am not sure if the closer’s concern is material to the decision to close the complaint, but in case it is I will state that I obtained all of the emails from the SPBID in response to various CPRA requests I made of them. I obtained all of them legally and with the knowledge of the SPBID.
2.2 Humiston’s duty to me
8. The closure letter states that the investigator “has determined that [I] am complaining about the attorney’s performance of duties owed to a client and not to [me].”
9. Again, I’m not sure if this claim is material to the decision to close the complaint, but in case it is I will argue that it is wrong.
10. My complaint is about Bar Rule 1.2.1, which among other things forbids a lawyer to counsel a client to break a law. If the duty to follow this rule were owed only to the client then it could not be enforced unless a client complained. Thus the rule would only be enforceable in cases where the client was unhappy with the lawyer’s advice to break the law.
11. If that were the case then the rule would be equivalent to a rule forbidding lawyers to counsel clients to break the law unless the client is happy with such advice, in which
case it’s permitted. Clearly such an interpretation cannot be correct.
12. Thus it must be the case that the duty to abide by Rule 1.2.1 is owed to others besides the client. Probably it’s owed to society at large in exchange for the benefits conferred
by a license to practice. Therefore this false claim cannot support a decision to close
2.3 Attorney/client relationship
2.3.1 Potential interference in the relationship
13. The closure letter states that “[a]n inquiry … into [my] allegations … could potentially interfere with the attorney-client relationship.”
14. This statement must be true of all or most of the complaints handled by the State Bar. If the mere potential for an inquiry to interfere with the attorney-client relationship were a legitimate reason for not pursuing it then very few inquiries could be pursued. More than mere potential for interference must be required as a reason for refusing to pursue an inquiry.
15. Therefore any argument in favor of closure of my complaint which relies on the mere potential for interference must fail.
2.3.2 Humiston’s assertion of attorney-client confidentiality prevents determination
16. The closure letter states that in order to respond to an inquiry “the attorney would have to assert the confidentiality of the attorney-client relationship, and the State Bar would not be able to make a determination in the matter.”
17. First, Humiston’s client, the SPBID, already waived the attorney-client privilege by producing these emails in response to a lawful request for public records. Thus any argument in favor of closure that relies on any information in these emails being confidential or privileged must fail.
18. Second, one of the emails involves parties other than the attorney and the client, and so isn’t privileged even if the SPBID hadn’t waived the privilege by producing the email in response to my request.
19. Finally, even if the emails actually were privileged, the privilege must not cover cases where an attorney advises a client to violate a law. If the privilege did cover such cases then, as argued above in Section 2.2, Bar Rule 1.2.1 would either be unenforceable or would be limited to cases where a client was unhappy with an attorney’s advice, and neither of these interpretations is supportable.
20. Therefore the email evidence in support of my complaint is not confidential under the attorney-client privilege or for any other reason. So any argument for closing the complaint based on privilege or confidentiality of this evidence must fail.
2.4 The Bar is not a trier of fact
21. The closure letter states that “the State Bar is not a trier of fact and cannot make a determination as to the facts and merits of this matter, such as whether the reply to your C.P.R.A. request was proper.”
22. The assertion that the State Bar “cannot make a determination as to the facts and merits of this matter” must be false. If it were true, whether because, as the author states, it is “not a trier of fact” or for any other reason, then the State Bar would not be able to inquire into any complaints at all.
23. Every inquiry into a complaint requires “a determination as to the facts and merits of” the matter complained of. Since the State Bar evidently does from time to time inquire into matters, any argument for not inquiring into this one which is based on the argument at hand must fail.
24. Additionally the closure letter’s claim that the State Bar is incapable of determining “whether the reply to my C.P.R.A. request was proper” is plausible and I have no dispute with it. However, it’s immaterial to the decision to close my complaint. In order to determine whether Ms. Humiston counseled her client to violate the law it is completely unnecessary to inquire into her client’s actions. The only question that must be investigated is whether Ms. Humiston’s advice, if followed, would have constituted a violation. The application of Rule 1.2.1 cannot plausibly depend on whether a client actually follows the advice, and therefore the client’s actions after being advised are no part of an inquiry.
25. Therefore any argument for closing this complaint which relies on the evident fact that the Bar is not meant to adjudicate claims about the C.P.R.A. itself must fail.
2.5 A civil court is an appropriate venue for this matter
26. The closure letter states that “[a] civil court having jurisdiction is the appropriate venue to make any legal and factual Endings regarding the propriety of the response to [my] C.P.R.A. requests.”
27. This is a true statement. However, as argued above, the propriety of the SPBID’s response to my CPRA requests are not at issue in this complaint. It is the legality of Ms. Humiston’s advice to the SPBID that is at issue. A civil court is absolutely not the appropriate venue to make such a determination. Advising clients to violate laws is not necessarily a violation of any law, it may not cause any damage, it may not, as it is not in this case, be actionable in a civil court. It is a violation of a Bar rule, though, and the State Bar is absolutely the appropriate venue to make findings regarding Bar rule violations.
28. Any argument for closing my complaint without action that relies on the claim that the Bar doesn’t have jurisdiction over violations of its rules must fail.
29. Every argument in favor of closing my complaint without action that’s given in the Bar’s response fails to support such a decision.
30. Therefore I request that the State Bar reopen this complaint and investigate it thoroughly.