Limits of First Amendment Protection for Whistleblowing Attorneys: Garcetti v. Ceballos, Lecture notes of Law

Download Limits of First Amendment Protection for Whistleblowing Attorneys: Garcetti v. Ceballos and more Lecture notes Law in PDF only on Docsity! TENDING TO POTTED PLANTS: THE PROFESSIONAL IDENTITY VACUUM IN GARCETTI V. CEBALLOS Jeffrey W. Stempel* As people my age probably recall, Washington lawyer Brendan Sullivan1 briefly became a celebrity when defending former Reagan White House aide Oliver North before a Senate investigation. Senator Daniel K. Inouye (D-Haw.) was questioning Colonel North when Sullivan objected. “Let the witness object, if he wishes to,” responded Senator Inouye, to which Sullivan famously replied, “Well, sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”2 The episode was captured on live television and rebroadcast repeatedly, making Sullivan something of a hero to lawyers,3 even moderates and liberals * Doris S. & Theodore B. Lee Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas. Thanks to Bill Boyd, Doris Lee, Ted Lee, Ann McGinley, Jim Rogers, and John White. Special thanks to David McClure, Jeanne Price, Elizabeth Ellison, Chandler Pohl, and Kathleen Wilde for valuable research assistance. © 2011 Jeffrey W. Stempel 1 Sullivan was a partner in the Washington, D.C. firm Williams & Connolly, a firm with a sophisticated practice and prestigious reputation, particularly in the area of white-collar criminal defense. See Brendan V. Sullivan Jr., Partner, WILLIAMS & CONNOLLY LLP, http:// www.wc.com/bsullivan (last visited Mar. 9, 2012). Founding partner Edward Bennett Wil- liams is perhaps best known as a lawyer for his successful defense of Teamster’s Union head Jimmy Hoffa as well as defense of other public figures charged with crimes or corruption. See Firm Overview, WILLIAMS & CONNOLLY LLP, http://www.wc.com/about.html (last vis- ited Mar. 9, 2012). 2 See KIM EISLER, MASTERS OF THE GAME: INSIDE THE WORLD’S MOST POWERFUL LAW FIRM 141 (2010) (internal quotation marks omitted); LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER-UP 133 (1997) [hereinafter WALSH, FIREWALL]; see also John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 282–86 (1989) (describ- ing Sullivan’s handling of another verbal “altercation” between Sullivan and Chief Senate Counsel Arthur L. Liman during the Iran-Contra hearings). 3 See EISLER, supra note 2, at 141 (“With that line, Sullivan vaulted from the case files in the law library into the reference pages of Bartlett’s Quotations. . . . Sullivan immediately and unexpectedly became one of the most recognizable attorney names in the world.”); OLI- VER L. NORTH WITH WILLIAM NOVAK, UNDER FIRE: AN AMERICAN STORY 363 (1991) (“Who could have guessed that a throwaway line about foliage would capture the imagina- tion of the American public? That afternoon, we returned to the law firm to find dozens of potted plants. By the next day, there were potted plants everywhere—in the lobby, in the corridors, and especially in Brendan’s office, which . . . resembled a terrarium.”); Aaron Epstein, Ollie North’s Mouthpiece Lawyer Brendan V. Sullivan Jr. Played The Heavy In the 1987 Iran-contra Hearings. These Days, He’s Using A Different Strategy. Still, You’ll Never Confuse Him With A Potted Plant, PHILA. INQUIRER, Mar. 24, 1989, http://articles.philly. com/1989-03-24/news/26128966_1_north-trial-brendan-sullivan-s-iran-contra (“With a sin- gle phrase, the man by North’s side burst into public attention as a lawyer who couldn’t be cowed.”). Of course, as well-put by the photographer Weegee, “You’re as good as your last 703 704 NEVADA LAW JOURNAL [Vol. 12:703 who had little use of Colonel North’s conservative politics and the Iran-Contra scheme that funded anti-communist guerillas in Central America through the proceeds of weapon sales to Iran.4 Whatever the merits or demerits of Colonel North as a client (seen by some as a patriot, others as a criminal or even a traitor),5 people instinctively realized that persons facing congressional investi- gation/inquisition were entitled to competent, even combative counsel. Although Sullivan’s potted plant remark did not quite reach the level of Joseph Welch’s “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” that helped to wake the nation from the fog of McCarthyism,6 it was a good example of a lawyer doing his job, protecting his client, willing to confront power without backing down, and using some humor to boot. History and literature are festooned with similar examples of lawyers taking a stand for their clients and justice in the face of mob insanity and gov- ernment oppression: Lord Brougham,7 Thomas More,8 Andrew Hamilton,9 picture. One day you’re a hero, the next day you’re a bum.” Jan Morris, New York’s Golden Age: ‘Manhattan ‘45’, N.Y. MAG., Oct. 6, 1986, at 48, 56 (internal quotation marks omit- ted). The American Lawyer described Attorney Sullivan’s less successful outing represent- ing a product manufacturer in tort litigation a few months after the North hearing but noted that prospective jurors recognized him favorably as “Ollie North’s lawyer.” See Tim O’Brien, Brendan Sullivan Bombs in Brooklyn, AM. LAWYER, Sept. 1988, at 119, reprinted in STEVEN BRILL, TRIAL BY JURY 181 (1989). 4 See LAWRENCE E. WALSH, IRAN-CONTRA: THE FINAL REPORT xiii (1994) [hereinafter WALSH, FINAL REPORT] . According to the Independent Counsel’s report: The Iran/contra affair concerned two secret Reagan Administration policies whose operations were coordinated by National Security Council staff. The Iran operation involved efforts in 1985 and 1986 to obtain the release of Americans held hostage in the Middle East through the sale of U.S. weapons to Iran, despite an embargo on such sales. The contra operations from 1984 through most of 1986 involved the secret governmental support of contra military and paramili- tary activities in Nicaragua, despite congressional prohibition of this support. The Iran and contra operations were merged when funds generated from the sale of weap- ons to Iran were diverted to support the contra effort in Nicaragua. Id. at xv. 5 See United States v. North, 910 F.2d 843 (D.C. Cir. 1990), modified in part, United States v. North, 920 F.2d 940 (D.C. Cir. 1990) (overturning conviction of North on the basis of immunity granted in return for his congressional testimony). Compare WALSH, FINAL REPORT, supra note 4, at 105–22 (1994) (Independent Counsel Lawrence Walsh’s report describing the prosecution of Oliver North), with WALSH, FIREWALL, supra note 2, at 133 (“[T]he marine and his image had achieved overwhelming popularity. North’s military bear- ing, the look of sincere conviction in his frequently moist gray eyes, the apparent candor of his admissions—all these factors and more—evoked a near tidal wave of public support.”). 6 See Special Senate Investigation on Charges and Countercharges Involving: Secretary of the Army Robert T. Stevens, John G. Adams, H. Struve Hensel and Senator Joe McCarthy, Roy M. Cohn, and Francis P. Carr: Hearing Before the Special Subcomm. on Investigations of the Comm. on Gov’t Operations, 83d Cong. 2429 (1954) (statement of Joseph N. Welch, special counsel for the Army); see also Geoffrey R. Stone, Free Speech in the Age of McCarthy: A Cautionary Tale, 93 CAL. L. REV. 1387, 1402 (“It was the moment that finally and indelibly exposed Joseph McCarthy for what he was: a bully willing to tear apart anyone who tried to stop his crusade. In the weeks after the hearings, his popularity plummeted.” (footnotes omitted)). 7 Lord Henry Brougham was a prominent English barrister probably best known for his defense of Queen Caroline on charges of adultery, during which he famously stated that “an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client” and that in representing the client a lawyer must disregard the interests of third Summer 2012] GARCETTI V. CEBALLOS 707 Dalkon Shield manufacturer A.H. Robins.20 Frederick Aiken was willing to defend the very unpopular Mary Surratt, who sheltered Lincoln assassin John Wilkes Booth in her boarding house and was accused of being part of the assas- sination conspiracy.21 Richard Ceballos may or may not have been a small bore Thomas More. We’ll never know for certain because the U.S. Supreme Court ruled that his employer, Los Angeles District Attorney Gil Garcetti, was free to fire Assistant District Attorney Ceballos without question in alleged retaliation for Ceballos calling the DA’s office into account for alleged use of a falsified affidavit designed to obtain an improper conviction.22 some on the Nixon team, that destruction of the tapes would be criminal because they were certain to be sought as evidence); see also LEONARD GARMENT, CRAZY RHYTHM 280–83 (1997) (autobiographical discussion of the episode). 20 Tuttle had been an in-house lawyer at A.H. Robins during the time of the Dalkon Shield’s development and the early years of litigation before subsequently becoming a law professor at Oral Roberts University. He described his role in destroying incriminating Robins’ docu- ments, paving the way for increased success of plaintiffs’ claims. See Charles Alexander et al., Robins Runs for Shelter, TIME, Sept. 2, 1985, www.time.com/time/printout/0,8816,959 726,00.html (“Roger Tuttle, a former attorney for the company, testified that he had destroyed internal documents relating to the Dalkon Shield on orders from his bosses. Rob- ins flatly denied Tuttle’s testimony, but it helped produce the largest jury verdict against the company to date: a $9.2 million award in May to a Wichita woman who had to undergo a hysterectomy after using the Dalkon Shield.”); Barry Siegel, The Right Question: One Man’s Effort to Tell Dalkon Story, L.A. TIMES, Aug. 22, 1985, http://articles.latimes.com/print/ 1985-08-22/news/mn-2247_1_dalkon (describing testimony of Tuttle, a born-again Chris- tian, who after “misplaced zeal” in defending Robins over which he came to “hang my head in shame,” described the document destruction; also noting that the “impact [of the testi- mony] has been considerable, and it has played a role in forcing Robins to seek protection in bankruptcy court.”); Jane Sims Podesta, After a Lawyer Turns Whistle-Blower, the Company That Made the Dalkon Shield Warns Women of Its Dangers, PEOPLE, Jan. 14, 1985, www. people.com/people/archive/article/0,,2009069.00.html (quoting Professor Tuttle as telling his students, “Stalk out in a rage if you believe a client’s wishes are unethical. Don’t hang around.”). 21 This historical episode recently reached a mass audience through the Robert Redford- directed movie THE CONSPIRATOR (The American Film Company & Wildwood Enterprises), released in 2011, which starred James McAvoy as attorney Aiken, who, despite being an ardent unionist and Lincoln supporter, sought to insure a fair trial for Surratt (played by Robin Wright). Regardless of whether the movie accurately portrays Aiken, it serves to illustrate a longstanding theme of American law and society: the attorney willing to take a stand for fairness and justice in the face of emotion and even mob hysteria. 22 Outside the arena of their litigation, both Ceballos and Garcetti seem to be living rather productive lives notwithstanding some criticism (discussed at greater length below). Cebal- los continues as a deputy DA and as a community activist as well as a tequila distributor. See Richard Ceballos Resume and Biography, available at www.law.uci.edu/pdf/ceballosCV. pdf (last visited Mar. 9, 2012); Richard Ceballos, Opinion, Don’t Replace Pomona Police, INLAND VALLEY DAILY BULL., July 25, 2010; Richard Ceballos, Letter to the Editor, Don’t Charge For Lanes, SAN GABRIEL VALLEY TRIB., June 17, 2009 (praising newspaper article favoring greater whistleblower protection and contending that Los Angeles County has a “custom and habit of ignoring the warnings of corruption, waste, and fraud brought forward by . . . employees” and that often “reaction is to label the conscientious employee as insubordinate, a troublemaker, or malcontent”); Richard Ceballos, Opinion, Prop. 5 A Mis- guided Initiative, SAN GABRIEL VALLEY TRIB., Oct. 23, 2008 (opposing proposed legislation that would “effectively provide narcotic offenders with virtual ‘get-out-of-jail’ cards, prohib- iting judges from incarcerating those who continue to commit crimes in order to support 708 NEVADA LAW JOURNAL [Vol. 12:703 In Garcetti v. Ceballos,23 the United States Supreme Court ruled that even if Ceballos was completely correct and that he had spotted chicanery by the Sheriff’s Department in falsifying an affidavit used to obtain a criminal convic- tion, DA Garcetti was entitled to take adverse job action against Ceballos and that this was not impermissible government punishment for Ceballos’ exercise of his First Amendment rights.24 For reasons well said in the dissenting opinions of Justices Stevens, Sou- ter, Ginsburg, and Breyer, Garcetti v. Ceballos is poorly reasoned as a matter of First Amendment doctrine.25 But for purposes of this Symposium, I wish to focus on what makes Garcetti one of the Court’s “worst” from my perspec- tive—the Court’s failure to recognize and appreciate—at least in its formal disposition of the case—that Richard Ceballos was more than a public employee voicing concern over an important failing of the workplace that affected the public interest (although that still should have given him more protection to speak what he regarded as the truth) but was an attorney sworn to act as an officer of the Court and required to follow a professional responsibil- ity code that not only permitted but required him to blow the whistle on false affidavits used by prosecutors.26 their drug habits”); Richard Ceballos, Whistleblower Richard Ceballos Letter to Congress, PUBLIC CITIZEN (May 14, 2007), http://www.citizen.org/Page.aspx?pid=2348 (stressing need for greater whistleblower protection). Ceballos also ran unsuccessfully for Pomona City Council. See Monica Rodriguez, Some Pomona Residents Hinting Recall After Romero’s Ouster, INLAND VALLEY DAILY BULL., Dec. 16, 2008. Garcetti, after his defeat for re-election as District Attorney in 2000, became a promi- nent photographer as well as a producer of the TNT television serious The Closer and served on the Los Angeles Ethics Commission. He was also profiled on a May 2006 segment of the CBS News Program Sunday Morning with Charles Osgood. See, e.g., Beth Barrett, Garcettis Take Heat Over Plan: Pair’s Actions on Term-Limit Measure Drawing Criticism, L.A. DAILY NEWS., Aug. 9, 2006, at N1 (noting Garcetti’s chairpersonship of Ethics Commission and son Eric’s status as L.A. City Council President but focusing on allegations that they unfairly attempted to push through amendment of term limits restrictions); Suzanne Muchnic, The Picks of Their Pics; Members of LACMA’s Photographic Counsel Share Favorites From Their Diverse Personal Collections, L.A. TIMES, Aug. 14, 2010, at D1 (not- ing Garcetti’s “success in his second career as an urban photographer”). 23 Garcetti v. Ceballos, 547 U.S. 410 (2006). 24 See id. at 420–24. 25 See id. at 426 (Stevens, J., dissenting); id. at 427 (Souter, J., dissenting, joined by Stevens and Ginsburg); id. at 444 (Breyer, J., dissenting). 26 As discussed below, only Justice Breyer’s dissenting opinion provides any real discussion of Ceballos’ status as an attorney and his corresponding duties to the justice system. The Court was of course aware that Ceballos was an attorney and that attorneys have certain obligations to refrain from bringing tainted prosecutions and to be candid with courts. See Transcript of Oral Argument at 6–7, Garcetti v. Ceballos, 547 U.S. 410 (Oct. 12, 2005) (No. 04-473) (question of Justice Ginsburg) [hereinafter Transcript A], id. at 17–18 (colloquy between Justice Souter and Garcetti counsel Cindy S. Lee, Esq.) (discussing prosecutor’s obligations under Brady v. Maryland to disclose evidence tending to exonerate defendants), and Transcript of Oral Re-argument at 8–9, Garcetti v. Ceballos, 547 U.S. 410 (March 21, 2006) (No. 04-473) (question of Justice Scalia) [hereinafter Transcript B]; id. at 9–10 (collo- quy between Justice Ginsburg and Lee); id. at 53–55 (answer of Ceballos’ counsel Bonnie Robin-Vergeer, Esq. to question of Justice Souter addresses attorney professional ethics, whistleblowing, and “up ladder” reporting of improprieties to superiors); see also Transcript B, supra, at 38–39 (question of Justice Scalia expressing concern that “loose cannons” in DA’s office might be “accusing perfectly honest and respectable police officers of violating Summer 2012] GARCETTI V. CEBALLOS 709 Mr. Ceballos could, of course, have been wrong about whether the Sheriff erred. Mr. Ceballos might also have been unduly bellicose and counter-produc- tive in the manner in which he raised the issue (although that seems unlikely from the limited facts recited in the case). We will never know about the bona fides of the Ceballos claims and contentions because the Court essentially smothered his claim at birth with its overbroad ruling essentially stating that public employees have no First Amendment rights to criticize occurrences in the workplace—at least unless they are willing to be fired for speaking out, no matter how important the workplace failings may be to the public interest. That ruling, as the dissenters pointed out, was unwise and incorrect as a matter of constitutional law. It also failed to appreciate the zone of freedom required of attorneys working for organizations if lawyers are to properly fulfill their role as officers of the court and occasional guardians of judicial fairness as well as their role as partisan advocates. Depressingly, only Justice Breyer’s dissent even touched upon the matter of Mr. Ceballos as a lawyer as well as a dissident.27 More important, Mr. Ceballos was a lawyer for the government and for the prosecution, entities empowered to deprive persons of life and liberty and entities restricted in their power by the Due Process Clause of the Fourteenth Amendment. If anyone should have freedom to speak out internally against perceived police and prosecutorial abuse without fear of job retaliation, it should have been attorneys like Richard Ceballos—even if they are incorrect. Instead of recognizing this, the Court majority relegated Deputy DA Ceballos to the role of a mere functionary on an assembly line, someone who could be fired merely because the boss disliked his taste in music, film, or professional sports. Although one now almost expects laypersons to misunder- stand or under-appreciate the role of the lawyer as a guardian of the system’s integrity, it is particularly shocking that the Court as a whole failed so badly in this regard. The Ceballos saga began when Mr.Ceballos, a “calendar” deputy or super- vising attorney in the DA’s Pomona branch office was contacted by a defense attorney contending that there were inaccuracies in a search warrant used by police28 to “obtain a critical search warrant.”29 Rather than disregarding defense counsel, as one might cynically expect from prosecutors in an adver- the law,” a sentiment arguably reflecting excessive concerns for inconvenience or difficulty for law enforcement officials as compared to harm suffered by defendants through wrongful prosecution or conviction). Despite being at least somewhat aware of the professional responsibility implications of the Garcetti case, nearly all Justices chose not to address its implications for the decision. 27 Garcetti, 547 U.S. at 446 (“[T]he speech at issue is professional speech—the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the govern- ment’s own interest in forbidding that speech is diminished.”); see also id. at 447 (quoting Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 172 (1996) (“[P]rofessionals must always qualify their loyalty and commitment to the vertical hierarchy of an organization by their horizontal commitment to general professional norms and standards.”)). 28 The investigation and warrant activity in question was conducted by the L.A. County Sheriff, but for each reference I will refer to law enforcement activity in the case as being conducted by the “police.” 29 Garcetti, 547 U.S. at 413. 712 NEVADA LAW JOURNAL [Vol. 12:703 Fourteenth Amendment rights due to the retaliation.35 The District Attorney (Gil Garcetti36), in addition to contending that there had been no retaliation, also argued that Ceballos’ conduct was not protected speech because he had spoken as a deputy DA and county worker rather than as a public citizen addressing matters of general public concern.37 The trial court rejected the Ceballos claim but the Ninth Circuit reversed, setting the stage for the Supreme Court’s opinion.38 The Supreme Court rejected the Ninth Circuit view that Ceballos had a viable Section 1983 claim, largely applying the First Amendment doctrine set 35 See id. The retaliatory actions of which Ceballos complained “included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion.” Id. In addition to asserting that Ceballos enjoyed no First Amendment protection for his statements, the District Attorney contended that “all [of] the actions of which [Ceballos] complained were explained by legitimate reasons such as staff- ing needs.” Id. The Ninth Circuit opinion presents in greater detail the nature of the retalia- tion alleged by Ceballos, listing eight particulars. See Garcetti, 361 F.3d at 1171–72; see also Crogan, supra note 32, at 22–24. 36 Prior to becoming a celebrated photographer, Garcetti was Los Angeles DA from 1992 to 2000 and is most prominently known as the District Attorney during the notoriously failed prosecution of former football star O.J. Simpson for the murder of his estranged wife Nicole Brown Simpson and her friend Ron Goldman. He was defeated in the 2000 election by challenger Steve Cooley in a campaign where the failed Simpson prosecution was a signifi- cant political issue adversely reflecting on Garcetti’s competence. As noted above, he subse- quently began a second career of sorts as a photographer, and was involved as an actor and collaborator with several television crime shows. See Gil Garcetti, WIKIPEDIA, http://en. wikipedia.orghttp://en.wikipedia.org/wiki/Gil_Garcetti (last visited Mar. 9, 2012); see also Suzanne Muchnic, Quick Takes; Garcetti Photos at U.N., L.A. TIMES, July 4, 2009, at D2 (describing Garcetti as a “prominent photographer” presenting exhibits of his work at the United Nations General Assembly). It has long been local lore among Los Angeles lawyers that Garcetti insisted that the Simpson trial be held in downtown L.A. rather than the nearer to the Brentwood location where the killings occurred. In doing so, Garcetti gave himself a better vantage point for monitoring the proceedings but did so at the cost of ensuring a substantially more African- American jury, which proved to be unduly sympathetic to Simpson’s claim that he was railroaded because of the racist tendencies of the L.A. police. See, e.g., GILLERS, supra note 7, at 469–70 (“Moving Pictures” note); Jeffrey Rosen, The Bloods and the Crits, NEW REPUBLIC, Dec. 9, 1996, at 37 (describing court-permitted jury visit to Simpson’s home prior to which Simpson counsel had replaced evidence of Simpson’s ties to white America with substantial Africanization of the home’s décor to emphasize Simpson’s roots and status as a prominent black American). Of course, permitting the jury to visit the unsecured Simpson home was only one of a number of terribly wrong aspects of the Simpson prosecution, some of which must be attrib- uted to Garcetti and the prosecution team as well as to the star-struck trial judge Lance Ito. Certainly, this particularly awful episode cannot be laid solely at the feet of Garcetti and his prosecutors generally (who opposed the visit but apparently lacked the presence of mind to obtain an injunction that the Simpson home not be altered prior to the visit). But revisiting the serial bungling of the OJ prosecution prompts at least some concern that the Garcetti DA’s office might indeed have been sufficiently ill-managed to overlook valid attorney com- plaints about police misconduct and to punish whistleblowers rather than seeking to rectify whistleblower complaints. 37 Garcetti, 547 U.S. at 415. 38 Id. Summer 2012] GARCETTI V. CEBALLOS 713 forth in Connick v. Myers,39 and Pickering v. Board of Education.40 The Court majority read those precedents as imposing a bright line distinction between government employee speech on the job about their job (which was not pro- tected) and a government employee speaking as a citizen (or perhaps other activities in other parts of the employer’s organization), which was subject to protection. “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”41 But where “public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”42 The majority sought through this bright line position “both to promote the individual and societal interests that are served when employees speak as citi- zens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.”43 Accord- ing to the majority, Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.44 Cynics among us might read this paragraph as one giving the green light to employers to smash employees who have the temerity to deviate from the employer’s party line or to question the propriety of employer practices. This is regrettable enough where the government employer and activity involve activi- ties such as paving roads, landscaping parks, or processing licenses. It becomes truly mischievous where that government employer’s activity is prosecution of crime with the potential consequence of incarceration of a defendant on the basis of falsified information. The Garcetti majority has it completely backwards. The law should not give employers “heightened interests in controlling speech made by an employee in his or her professional capacity” but rather should give profession- als adequate breathing space to properly discharge their professional obliga- tions—to both employers and to the law. Where the government task is prosecution, the employer’s need for “con- sistency and clarity” must yield to the truth. Consistent and clear railroading of defendants is hardly in the public interest and lawyers like Richard Ceballos 39 Connick v. Myers, 461 U.S. 138 (1983). The Connick of the opinion is long-time New Orleans District Attorney Harry Connick, who is perhaps better known as the father of musi- cian and actor Harry Connick, Jr. See Harry Connick, Sr., WIKIPEDIA http://en.wikipedia. org/wiki/Harry_Connick,_Sr. (last visited Mar. 9, 2012). 40 Pickering v. Bd. of Educ., 391 U.S. 563 (1968). 41 Garcetti, 547 U.S. at 419. 42 Id. at 421. 43 Id. at 420. 44 Id. at 422–23. 714 NEVADA LAW JOURNAL [Vol. 12:703 should be permitted to speak up to prevent perceived injustice, even if this results in “heated” exchanges with supervisors. The prosecutor/employer “mis- sion” is not simply making the prosecutorial trains run on time, it is ensuring that the process is fair and does not treat defendants and other participants in the system (e.g., jurors, witnesses, counsel) unfairly. This value is strong enough to tolerate the occasional errors of some whistleblowing attorneys. If a dissident like Ceballos is a poor worker, he can readily be disciplined or discharged for legitimate reasons and any subsequent 1983 litigation is unlikely to be successful or particularly taxing to the govern- ment. As a practical matter, all but the crankiest of cranks will be reluctant to take a stand against his or her work hierarchy without reasonably strong evi- dence of impropriety. Although Garcetti arguably spares the government the costs and inconvenience of weak First Amendment wrongful discharge claims, it does so at the cost of deterring potentially valuable input from lawyers fairly and accurately seeking to discharge their ethical obligations. Further, the issue of whether an employee’s work demonstrates “sound judgment” or is “inflammatory” or “misguided” does not logically give the prosecutor/employer carte blanche to discharge or discipline the employee who finds prosecutorial abuse and speaks out about it. At a minimum, the employee should have the chance to show that the adverse job action was in retaliation for speech (particularly speech that calls the professional employer into account for professional failings) rather than due to some deficiency of job performance. Similarly, the employer seeking to discharge or discipline the subordinate attor- ney who dares to speak out should have a better reason for the adverse job action than merely that the employee’s speech and actions have made the boss uncomfortable. Overlooked by the Court majority opinion and dissents, save for that of Justice Breyer, is that under the relevant ethical rules to which Ceballos was subject, he was essentially required to protest as he did once discovering the problems with the police affidavit at issue.45 An array for legal ethics rules and 45 As noted in note 26, supra, the Court at oral argument was aware that Ceballos, as an attorney, had particular ethical responsibilities. See Transcript A, supra note 26, at 7; Tran- script B, supra note 26, at 9. But in the course of deciding the case, only Justice Breyer’s dissent addressed this concern at any length. Perhaps even more than the disappointing majority opinion that emphasizes employer prerogatives and a perceived need for top-down control of workers, the Transcripts are replete with concern that lazy or “insubordinate” workers will undermine the employer and that the employer will face undue burdens in disciplining or discharging such workers. The Court’s concern is overstated in that it paints too gloomy a picture of the costs of defending employee retaliation suits. To a large degree, defending such claims is simply the modest cost of giving workers rights and fostering the public’s right to know. As a practical matter, these cases are unlikely to take much time or energy of the defendants unless the allegations have significant merit, a fact noted by Justice Souter at both oral argument and in his Garcetti dissent. See Garcetti, 547 U.S. at 435–36 (Souter, J., dissenting, joined by Stevens and Ginsburg, JJ.); Transcript A, supra note 26, at 3–4; see also Transcript B, supra note 26, at 34 (colloquy between Justice Scalia and Ceballos counsel on this issue). In addition, the Court, particularly the Garcetti majority, seems to misunderstand the nature of public employment. The Los Angeles DA’s office is not the functional equivalent of a small family business, rock band, or movie cast where a recalcitrant dissident can thwart the objectives of the entity whose members have an almost unfettered right to do things as Summer 2012] GARCETTI V. CEBALLOS 717 Similarly, whistleblowing in-house lawyers usually have not been stripped of their rights to sue for wrongful discharge merely because as lawyers they owe duties of confidence and loyalty to their single employer clients.57 Although there are cases to the contrary58 as well as cases inconsistent with Wieder and arguably more Garcetti-like in tone and outcome,59 it appears that the law of a private lawyer’s rights to sue for adverse job actions related to the attorney’s stand in favor of professional obligations is considerably more pro- tective than the rights of a government attorney to assert a constitutional tort under Garcetti. Logically, public prosecutors subject to the standard ethical obligations of counsel and the special responsibilities of a prosecuting attorney should have more protection than private lawyers who are not part of an office wielding the coercive legal and political power of the state. Under Garcetti and its categorical distinctions between speech in the workplace (even if a professional workplace) and speech in society at large, the prosecutor/employer is given the right to take even arbitrary adverse employ- ment actions when the attorney/employee is simply doing what is profession- ally required. In effect, the Garcetti DA’s office was allowed to arbitrarily punish Richard Ceballos even if Mr. Ceballos was being a good, conscientious, and responsible attorney.60 Whatever the merits of the constitutional law as GILLERS, supra note 7, at 579; see also, e.g., Sabetay v. Sterling Drug, Inc., 506 N.E.2d 919 (N.Y. 1987). To be clear, the decision does not necessarily mean that Wieder’s claim was factually accurate (although the law firm’s reporting of the matter to the bar suggests Wieder was on to something). Attorneys who claim misconduct by other attorneys must still sustain the burden of demonstrating the factual bona fides of the charges. 57 See, e.g., Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852 (Tenn. 2002) (in-house counsel contending improper firing due to complaint about ethics violation of superior may bring cause of action for wrongful discharge; no bar merely because employee was in-house lawyer subject to ethical rules regarding use of ethically protected client confidences); Burk- hart v. Semitool, Inc., 5 P.3d 1031 (Mont. 2000); GTE Products Corp. v. Stewart, 653 N.E.2d 161 (Mass. 1995); Gen. Dynamics Corp. v. Superior Court, 876 P.2d 487 (Cal. 1994) (same, but confidentiality duties of attorney place some restraint on proof that attorney may present in wrongful discharge litigation). The leading case to the contrary, Balla v. Gambro, Inc., 584 N.E.2d 104 (Ill. 1991), has been criticized by many commentators, but has its defenders. See GILLERS, supra note 7, at 578–79 (citing to cross-section of articles) and following note. 58 See, e.g., Balla, 584 N.E.2d at 104 (in-house attorney may not bring wrongful discharge suit for firing related to complaints about safety of employer’s product because litigation of action would require attorney to disclose client confidences); see also GILLERS, supra note 7, at 578–79 (citing to cross-section of articles). Balla, however bad a decision I might think it to be, has more intellectual credibility than Garcetti because Attorney Balla’s corporate employer was at substantial economic risk from the disclosures of in-house counsel that were fueled by information protected by the ABA Model Rule 1.6 duty not to disclose ethi- cally protected information. By contrast, the police affidavit that Ceballos viewed as inaccu- rate was in the public domain. Further, the Ceballos complaint to his superiors was “in- house” whistleblowing. He never took his concerns over the accuracy and fairness of the prosecution to the media or other third parties and attacked the affidavit through the judicial process. 59 See, e.g., Bohatch v. Butler & Binion, 977 S.W.2d 543 (Tex. 1998) (associate attorney alleging firing by law firm due to complaints about unethical billing by partner may not bring wrongful discharge action). 60 Subsequent events suggest that Mr. Ceballos was indeed something more than a crank or disgruntled employee. He continues to hold a position in the DA’s office and appears to have 718 NEVADA LAW JOURNAL [Vol. 12:703 enunciated in the Connick-Pickering-Garcetti line of cases for lay government workers, it is an affront to the legal profession and public policy when applied to attorneys working for the government. Various definitions of professionalism exist that emphasize different aspects of the concept but all generally agree that professionals are workers who have substantial education and training in a reasonably sophisticated field of technical knowledge, with control over entry to the profession, admission and certification requirements, ongoing regulation by the profession itself, and required adherence to a code of professional conduct and a body of professional norms.61 Although the modern era has brought a tendency to try to treat too many workers as professionals (e.g., the hairdresser or landscaper who speaks of his “clients” who are really better described as “customers” if we still take professionalism seriously), most agree that the true professionals of society are its traditional five professions (law, medicine, clergy, military, and university teaching) and probably the emerging modern professions of engineering, accounting, and architecture as well.62 Without denigrating any of the traditional professions or the modern emerging professions, one can say (I hope without controversy) that lawyers and the legal profession hold a particularly important place in society’s system of justice. Lawyers represent those prosecuting and defending criminal and civil matters. Lawyers sit as judges adjudicating these matters and have sub- stantial authority to overturn or disregard the views of lay jurors. Although the traditional role of lawyers in state legislatures and Congress has diminished during the past four decades, lawyers still play a crucial role in making the law beyond standard common law adjudication. Recognizing the role of the attorney and the need for lawyer professional- ism, American law has for more than a century codified expectations of law- yers that include a command that lawyers not only serve clients but also safeguard the judicial system. Today, that ethos is embodied in the ABA Model Rules of Professional Conduct and countless judicial opinions and state bar ethics opinions. I am not naı̈ve enough to suggest that, as an empirical matter, lawyers wake up every morning with thoughts of serving the system foremost in the frontal lobes of their brains. A New Yorker cartoon from the 1970s featuring a mythical senior partner and associate at a cocktail party (“We practice law to significant involvement in public issues through expressing opinions in the local media on topics such as whether to abolish the Pomona California police department and seeking (apparently unsuccessfully) a seat on the Pomona City Counsel. See Rodriguez, supra note 22. 61 See ELIOT FREIDSON, PROFESSIONAL POWERS: A STUDY OF THE INSTITUTIONALIZATION OF FORMAL KNOWLEDGE 59 (1986); GILLERS, supra note 7, at 15–16 (discussing professional- ism); see also EMILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIC MORALS (Cornelia Brookfield trans., Routledge 2d ed. 1992); MAGALI SARFATTI LARSON, THE RISE OF PROFE- SIONALISM: A SOCIOLOGICAL ANALYSIS (1977); ELIZABETH WOLGAST, ETHICS OF AN ARTIFI- CIAL PERSON (1992); Talcott Parsons, The Professions and Social Structure, 17 SOCIAL FORCES 457 (1939). 62 See generally sources cited supra note 61. Summer 2012] GARCETTI V. CEBALLOS 719 make money, Hawkins. If you can think of a better reason, let’s hear it”)63 captures rather well the work-a-day necessity of being a lawyer, at least in private practice. For government prosecutors on a fixed salary, the mantra often becomes that the prosecutor practices law to “obtain convictions” or “put bad guys away” or simply to “win.” But the slouching of the daily reality of law practice from its more noble aspirations of justice and fairness should not obscure that lawyers who occa- sionally “blow the whistle” on unfair or illegal practices, even if incorrect in their assessment, are simply doing their jobs every bit as much as the zealous advocate or the loyal subordinate lawyer is doing his or her job. If anything, the reality of daily practice should be cause for celebrating the lawyer willing to be the “house crank” about the niceties of procedural fairness. Even if this lawyer is wrong, he or she performs a valuable public service. More important, it is a public service that is part and parcel to the lawyer’s job description. The Supreme Court (save for Justice Breyer) overlooked this aspect of lawyer professionalism, with the Garcetti majority seeming to take the view that lawyers taking their ethical responsibilities seriously are bugs to be swatted and squished with impunity by their employers. That a group of lawyers could hold such an impoverished view of lawyering is what makes Garcetti v. Cebal- los such a bad Supreme Court opinion. Instead of celebrating (or at least tolerating) the efforts of Richard Cebal- los to be an officer of the court rather than a cog in the prosecutorial machine, the Garcetti majority treated him as if he were a Bolshevik seeking to disturb the essential order of the universe. The majority’s rhetoric about employer con- trol of workers, the need for consistency and avoiding dissent in the workplace smacks more of a plantation than an office of legal professionals. By the major- ity’s reasoning, dissenting justices should be fired—or at least would have no claim for relief if evicted from their chambers and relocated to portable trailers in the RFK Stadium parking lot.64 63 The quote and description of the cartoon is from memory but was previously memorial- ized closer to the time I first saw the cartoon. See Jeffrey W. Stempel, Embracing Descent: The Bankruptcy of a Business Paradigm for Conceptualizing and Regulating the Legal Pro- fession, 27 FLA. ST. U. L. REV. 25, 45, n.82 (1999). 64 I realize that courts, government law offices, and lawyers in private practice have differ- ent jobs. Most prominently, courts are set up so that they (at least in theory) have no “cli- ents” and no allegiance to anything but fair and just application of the law. But this difference between judges and lawyers, like most anything else in the world, is a matter of degree rather than a day/night distinction. The Court, or at least Justice Breyer, seemed to appreciate this at the initial oral argument in Garcetti. See Transcript A, supra note 26, at 31–32 (suggesting that Court’s law clerks would be addressing matters of public concern every day on the job). The implication, of course, is that if deputy DA Ceballos can have a Section 1983 cause of action for protesting perceived professional misconduct, the same regime would obtain for a law clerk who was fired for protesting internally a Justice’s breach of judicial ethics or violation of the law. Although this might seem disastrous to the Garcetti majority, it seems the correct rule to me (and the prospect at least did not prevent Justice Breyer from supporting the Ceballos position in his dissent). Society has a strong interest in having the professional staff of judges bring such issues to the attention of judges and in protecting such staff from retaliation when staffers attempt to prevent breaches of judicial ethics or other law. Lawyers should not be cheating, and lawyers who see cheating in their law office or government agency should be speaking out against it and trying to stop it. Government lawyers, who as agents of the state wield the awesome power of the state, have 722 NEVADA LAW JOURNAL [Vol. 12:703 Prosecutors chose first to try Thompson in the armed robbery, for which a conviction could be invoked in support of the death penalty (for Thompson in the murder case). At least four prosecutors in the Orleans Parish district attor- ney’s office knew of the blood evidence, but none of them disclosed that to the defense. And just before the trial one of the prosecutors, Assistant District Attorney Gerry Deegan, removed the bloody swatch from the evidence in the case to keep its existence unknown to the defense. Thompson was convicted of the armed robbery and later of the separate murder, and still the blood evidence went unknown to his lawyers.72 While he was on death row, Thompson’s conviction was challenged. Weeks before he was scheduled for execution, a private investigator discovered the blood sample—which showed that the blood type of the armed robber was Type B while Thompson’s was Type O—evidence strongly suggesting that Thompson was not the robber (or at least that the DA was wrong about him being the robber), that he in turn was not the murderer, and that even if he was the murderer, the tainted robbery conviction should not have been used to obtain a death penalty sentence.73 Notwithstanding this evidence both of Thompson’s innocence and heinous prosecutorial misconduct, the DA tried Thompson again for the murder after Thompson’s successful habeas corpus petition—and he was quickly acquitted. Thompson in turn sued for violation of his civil rights, alleging that he had been denied due process by government actors. The jury agreed and rendered a $14 million verdict.74 The Supreme Court vacated the judgment in Thompson’s favor, ruling that his was not a proper Section 1983 claim because there was insufficient evidence that his civil rights were violated because of a policy of the prosecutor’s office rather than the isolated misconduct of employees of the prosecutor’s office.75 Under 42 U.S.C. § 1983, government officials cannot be held liable on respondeat superior grounds but the plaintiff must show that his injury stemmed from a policy of the defendant.76 Thompson alleged that the defective policy was failure of the DA to train personnel in the proper applica- tion of Brady v. Maryland,77 which requires that prosecutors disclose to defense counsel evidence tending to exonerate a criminal defendant. According to the Thompson majority, “Failure to train prosecutors in their Brady obligations does not fall within the narrow range” of cases where Sec- 72 Mark Walsh, A Real-Life Grisham Story: Denial of Jury Award Marks Disappointing Postscript to Death Row Release, A.B.A. J., June 2011, at 19–20. In what some might con- sider poetic justice, prosecutor Deegan was afflicted with a terminal illness. After this diag- nosis, apparently wishing to clear his conscience, Deegan confided to a friend his suppression of the evidence in Thompson’s armed robbery case. But in spite of his impend- ing death, Deegan refused to disclose his wrongdoing and its impact on Thompson. Shock- ingly, neither Deegan’s confidant nor any other attorney in the DA’s office came clean about the withheld evidence and what some might regard as the frame-up of Thompson. If Thomp- son’s own investigator had not discovered the truth, Thompson would have been wrongfully executed. See also Thompson, 131 S. Ct. at n.1. 73 See Thompson, 131 S. Ct. at 1356, Walsh, supra note 72, at 20. 74 See Thompson, 131 S. Ct. at 1357–58, Walsh, supra note 72, at 20. 75 See Thompson, 131 S. Ct. at 1365–66, Walsh, supra note 72, at 20. 76 See Thompson, 131 S. Ct. at 1358–61. 77 Brady v. Maryland, 373 U.S. 83 (1963). Summer 2012] GARCETTI V. CEBALLOS 723 tion 1983 liability can arise from a single Brady violation causing injury to a defendant.78 Amazingly, a significant part of the majority’s justification for waiving off the problems created by a DA’s office that failed to train its law- yers adequately about one of the most important rules of criminal procedure was the fact that lawyers come to the DA’s office with legal training, including training in rules of professional conduct which they are obligated to follow. Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both. These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements. Even those few jurisdictions that do not impose mandatory continuing-education requirements mandate that attor- neys represent their clients competently and encourage attorneys to engage in contin- uing study and education. . . . Attorneys who practice with other attorneys, such as in district attorney’s offices, also train on the job as they learn from more experienced attorneys. For instance, here in the Orleans Parish District Attorney’s Office, junior prosecutors were trained by senior prosecutors who supervised them as they worked together to prepare cases for trial, and trial chiefs oversaw the preparation of the cases. Senior attorneys also circulated court decisions and instructional memoranda to keep the prosecutors abreast of relevant legal developments. In addition, attorneys in all jurisdictions just satisfy character and fitness stan- dards to receive a law license and are personally subject to an ethical regime designed to reinforce the profession’s standards. Trial lawyers have a ‘duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.’ Prosecutors have a special ‘duty to seek justice, not merely to convict. Among prosecutors’ unique ethical obligations is the duty to produce Brady evidence to the defense. An attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment. In light of this regime of legal training and professional responsibility, recurring constitutional violations are not the ‘obvious consequence’ of failing to provide pros- ecutors with formal in-house training about how to obey the law. Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to per- form legal research when they are uncertain. A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations . . . .79 The Thompson majority’s “ode to attorney training and professionalism” coupled with the same group’s failure to even nod to Richard Ceballos status as a lawyer in Garcetti is nothing short of amazing. Where it serves the majority’s purpose of finding no liability for a DA, lawyer professionalism is front-and- center to its analysis. But when lawyer professionalism strengthens the case for 78 See Thompson, 131 S. Ct. at 1361. 79 Id. at 1361–63 (citations omitted) (footnotes omitted). 724 NEVADA LAW JOURNAL [Vol. 12:703 liability of a DA, the Garcetti/Thompson majority has no time for questions of lawyer role.80 The particular application of this inconsistency is embarrassing when applied to the facts of the two cases. Garcetti stands for the proposition that where a lawyer takes his job seriously, including its command that he act as an officer of the court, he buys a ticket to discipline or dismissal. But when a group of lawyers in the DA’s office (one particularly egregiously) violates the rules of professional conduct and ironclad, well-known constitutional law, the lawyer’s fractured “professionalism” insulates the DA from liability. A visitor from another planet would undoubtedly be surprised that legal professionalism can be such a heads-the-government-wins, tails-the-employee-or-defendant- loses proposition.81 Perhaps the most supportive thing to be said for the Thompson majority decision is that the violation of Mr. Thompson’s Brady rights by deputy DA Deegan and others was so egregious that one does wonder why specific training in Brady should have been necessary—or whether it would have done any good for the likes of Deegan and the other prosecutors in Orleans Parish who managed to keep quiet about this railroading of a criminal defendant.82 Although questions of lawyer professional responsibility can be complex in many cases, a huge number of legal ethics questions are answered by the simple rubric that a lawyer should not lie, cheat or steal. Attorney Deegan did all three. Failing to disclose exculpatory Brady material was clearly cheating. He effectively stole the blood sample evidence from safekeeping by hiding it so that it would not be found by Thompson. He constructively lied to Thompson and the court by continuing to prosecute the case knowing of this evidence that he had spirited away from the prosecution’s evidence file in Thompson’s case. It was despicable attorney conduct, conduct that not even his impending death prompted him to fully rectify—if it could be fully rectified at all once Thomp- son was wrongfully subjected to the harms of incarceration. Thompson clearly seems a bad decision, as well-articulated by the four dissenting Justices. But at least Thompson addressed the issue of attorney pro- fessionalism while Garcetti ignored it.83 Ironically, neither the Thompson 80 And it was the “same” majority in both cases. In Garcetti, Justice Kennedy wrote the opinion joined by Justices Scalia, Thomas, Roberts, and Alito (the dissenters were Justices Stevens, Souter, Ginsburg, and Breyer). See Garcetti v. Ceballos, 547 U.S. 410, 412 (2006). In Thompson, Justice Thomas wrote the opinion, joined by Justices Kennedy, Scalia, Rob- erts, and Alito (the dissenters were Justices Ginsburg, Breyer, Sotomayor, and Kagan). See Thompson, 131 S. Ct. at 1355. 81 Like Garcetti, Thompson was widely criticized in the media. See, e.g., Walsh, supra note 72, at 19–20; Editorial, Failure of Empathy and Justice, N.Y. TIMES, April 1, 2011, at A26. 82 Perhaps the policy of the New Orleans DA’s office that deserved challenge was not fail- ure to establish sufficient training about Brady v. Maryland but creation of a culture in which deputy prosecutors so easily disregarded the ethical rules they were supposed to be bringing to the job and which (in the view of the Thompson majority) insulated the department from Section 1983 liability. The latter type of informal policy of overzealous commitment to con- viction rather than procedural fairness is much harder to prove than the simple absence of a Brady training program. 83 Although perhaps straining Section 1983 doctrine, a better theory of the case for plaintiff Thompson might argue that the unconstitutional “policy” of the Orleans Parish DA’s office was not so much its lack of more formal Brady training but its culture of seeking convictions