The order of discipline describing the "disobedience" actually describes criticism of judges and claims of judicial bad faith, misconduct and corruption resulting in 2 out of 3 orders of sanctions:
Attorney Reiner was sanctioned for that conduct $2,500.
The second order imposed a $2,500 sanction for accusing a judge of "being corrupt, incompetent, and a liar".
I will try to obtain the actual orders of sanctions, for I believe that the sanctions were imposed by the objects of attorney Reiner's criticism.
So, in 2014, attorney Reinder was suspended from the practice of law for criticism of judges.
And, a federal court reciprocally suspended him in the same 2014, against his opposition claiming that he was suspended unconstitutionally, and reciprocal discipline by federal court during legal challenges to such a suspension is inappropriate.
By the way, in New York, the New York Court of Appeals claimed that calling judges "whores who want to become madams" is not subject to any attorney discipline whatsoever. Not only that attorney, Martin Erdmann, was not disciplined, but he went on to become a judge himself.
Anyway, in 2014, attorney Reiner called three judges "imbeciles" in a letter outside of court proceedings - and was sanctioned $2,500, and called a judge "corrupt, incompetent, and a liar" - and was sanctioned another $2,500 - and was suspended for those sanctions (plus one other sanctions that the disciplinary court claims to be unrelated to criticism of the judiciary, and attorney Reiner claims is so related).
In at least one of the three workers compensation actions, attorney Reiner sought to recuse/disqualify a judge for bias and incompetence:
The blessed California State Bar that is subject of a huge controversy now, to the point that the State Legislature denied to it authority to collect member dues - which the California State Supreme Court gave to the State Bar right back, illegally (and that is the same court that ruled that representation of a criminal defendant by a suspension attorney is not a violation of the defendant's right to effective representation of counsel, making attorney discipline in California for "one of the primary missions", protecting consumers (I wonder what other missions for occupational regulations of attorneys are for the State Bar of California) -
meaningless.
So, in March of 2014, attorney Martin Barnett Reiner was suspended by California State Bar for 6 months for criticizing judges.
In February of 2015, attorney Reiner was reciprocally suspended from the bar of the U.S. District Court for the Central District of California, despite his vigorous opposition claiming that reciprocal discipline against him in federal court is inappropriate where the state discipline was imposed for whistleblowing about judicial misconduct.
Discipline of an attorney for criticism of judiciary is, undoubtedly, content-based regulation of speech - I doubt that strict scrutiny was used in imposition of sanctions upon attorney Reiner. Strict scrutiny is never used in such cases.
In June of 2015, the U.S. Supreme Court decided Reed v Town of Gilbert, where the Court declared content-based regulation of any speech, even commercial speech, without strict scrutiny, unconstitutional.
In June of 2016, the U.S. Supreme Court decided Williams v Pennsylvania, where the U.S. Supreme Court, in a majority holding, in very broad general terms, declared court decisions where deciding judges act as both accusers and adjudicators, void on due process grounds.
At least under Reed v Town of Gilbert, discipline against attorney Reiner is unconstitutional - and thus void - since at least June of 2015.
One of the judges challenged by attorney Reiner's criticism, did impose sanctions upon him - supposedly not for criticism, but apparently because the judge was disgruntled by an "attack on integrity" in attorney Reiner's request for disqualification of that judge based on ethical violations.
In view of unconstitutionality of sanctions, attorney Reiner refused to pay the fines and comply with the order of suspension.
What is the position on this subject of the California State Bar that has as "one of its primary missions" protection of the consumer? Where making motions to recuse and criticizing judges is one of the duties of an attorney in order to secure for their clients the clients' constitutional right to impartial judicial review?
California State Bar obtained a disbarment of attorney Reiner for "disobeying the order of suspension".
In the order of disbarment of November 22, 2016, the State Bar Court has ruled that "disobedience is
not the proper mechanism for challenging a final, binding, and enforceable court order".
Where an order is unconstitutional, as provided by at least one, and likely two, U.S. Supreme Court precedents decided after the order of suspension, and the order of sanctions, were issued, such orders are neither final, nor binding or enforceable.
But, yet, the California State Bar Court has ruled that attorney Reiner's continuing insistence that sanctions and discipline based on sanctions against him is unconstitutional
- and sanctions against him for criticizing judges, and discipline based on those sanctions is unconstitutional, based on at least one U.S. Supreme Court precedent (Reed), decided after the sanctions and the discipline is imposed and de facto overruling both the sanctions and the discipline - are "aggravating factors" that justify his disbarment.
For the State Bar of California, invoking unconstitutionality of a court order is an "aggravating factor" to impose further discipline upon an attorney and to permanently deprive him of his law license and right to earn a living.
Please, note that attorney Reiner was sanctioned in worker's compensation proceedings. Rich people do not go to worker's comp proceedings. Attorney Reiner is an attorney for the poor - and injured - people.
And, California State Bar recognizes the existence of the so-called "justice gap" in California - inability of Californians to afford services of a licensed attorney - but in its own way.
On the one hand, California State Bar removes attorneys who actually provide services, and vigorous and fearless services, for the poor.
On the other hand, California State Bar uses the poor to collect money - see California State Bar effort to establish a "fund" to close the "justice gap".
Actually, the justice gap is closeable in two steps: deregulation of the legal profession and allowing consumers who cannot afford a licensed attorney, to hire anybody their trust to represent their interests. After all, it is their choice of who they think may represent their interests best - and the government may not prohibit competent adults to make their own choices of who will serve them best in a private representation, right?
The second step is to stop removing from the reach of poor consumers attorneys who are actually work for those poor consumers, and especially for doing their job - in the case of attorney Reiner, sanctions rained upon him after he made a motion to disqualify a judge and accused several judges of incompetence and corruption.
Having practiced for nearly 30 years, since 1989, attorney Reiner cannot be accused of not knowing what he is saying. And, after 30 years of practice, attorney Reiner may have ran out of patience tolerating the nonsense that an attorney may not criticize a judge, even when a judge commits misconduct or acts incompetently in front of that attorney's very nose.
Look at the "depth" of analysis of the order of disbarment - because the sanctioning court, in 2014, rejected attorney Reiner's constitutional arguments as made "in bad faith" (figure that all breakthroughs in constitutional law could be considered "in bad faith" when made at the time when the public thought contraception, interracial marriage, homosexual sex, homosexual marriage illegal and even criminal), the sanctioning court now should reject attorney Reiner's NEW constitutional arguments in 2016, even if between sanctions in 2014 and disciplinary proceedings in 2016 two more constitutional precedents in favor of attorney Reiner, in 2015 and in 2016, were decided by the U.S. Supreme Court.
In 2016, the California Bar Court acted the same way as in 2014 - where it found as an aggravating factor attorney Reiner's federal lawsuit challenging constitutionality of disciplinary proceedings against him:
Attorney Reiner is, in fact, correct - sanctions against him, and discipline against him is illegal and unconstitutional.
And, disobeying illegal and unconstitutional law may not be subject to new sanctions by the government - although it is.
Let's remember Rosa Parks.
Her actions were illegal.
After all, there was a law telling her that her place was in the back of the bus.
And she disobeyed.
And, there is an unspoken taboo keeping the legal profession in a fear paralysis - that an attorney may criticize a judge only at the cost of his license and livelihood, no matter what the judge is doing.
That unspoken taboo is clearly unconstitutional, precedents are decided as to unconstitutionality of content-based regulation of speech - but competent, professional, skilled attorneys working for the poor are consistently, systematically, repeatedly punished for doing their job - criticizing judges where attorneys, as experts, see misconduct of such judges.
136 years after a Pennsylvania has ruled regarding attorney discipline for criticism of judges:
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
Yet, 136 years after that ruling, such discipline, such position that is "too monstrous to be entertained for a moment under our present system", is "entertained" across the country.
Attorney Reiner is one of its latest victims.
And, you know what I do NOT see in California?
I do not see the people of the state of California protesting in the streets against the government widening the "justice gap" and consistently removing attorneys working for the poor from their reach, for doing their jobs too well.
Even after the State Bar of California demonstrated its corruptness to the point of going against its own former head of disciplinary board, after he "turned coat" and became a whistleblower of corruption and misconduct within the California State Bar.
What attorney Reiner did is an act of civil disobedience - refusing to comply with orders that he correctly considers unconstitutional.
Sanctions against attorneys and parties for making constitutional arguments were recently addressed by Democratic "minority whip" in the U.S. Senate, Steny Hoyer, who called upon the Senators to vote "no" as to the passing of "Lawsuit Abuse Act" that could chill civil rights litigation.
Acts of civil disobedience, while often resulting in harsh punishment by the government at the time they occur, are often hailed in history as acts of heroism.
Let's remember that this entire country has been founded on civil disobedience.
Had our predecessors obeyed the King's orders, we would still have had the King or Queen other than a President.
We have just seen the result of a courageous act of civil disobedience on North Dakota. The protestors have won so far, despite tremendous odds and after having been subjected to deprivation of water, attacks by vicious dogs and being doused by freezing water.
People are waking up to the realization that courts in this country are permeated by corruption and need to be cleaned up.
People are waking up to the realization that whistleblowers who report court corruption, who were so far repeatedly punished and sanctioned and marginalized into a status of unemployed and unemployable individuals.
And, a result similar to North Dakota's result may be possible if people finally unite in a concerted action to fight punishment of court corruption - and demand from their representative in legislature that laws against punishment of whistleblowers criticizing governmental and especially judicial, misconduct, be passed.
If the current legislators would not do that, they need to be voted out of office and replaced with those who will.
We the people can do it.
The fate of Martin Barnett Reiner - and other people like him, deprived of their right to earn a living for doing their job and for criticizing the government - should not be repeated.
#IStandWithMartinBarnettReiner.
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