Mr. Frieman, wasting time and money, and proud of it.
I don’t know if Jonathan Frieman is an Occupy Oakland refugee, a failed lawyer, a scofflaw, a dummy or just a trouble-maker, but he decide to game a California “2 or more persons” car pool lane by “sharing” his vehicle with corporate documents. Thus, when he was pulled over, he handed the Highway Patrol officer incorporation papers that were in the passenger seat. Get it? The corporation is a “person,” legally, so there were two “people” in his car! The officer ticketed him anyway, since his defense was ridiculous. But funny!
Frieman hired an attorney Ford Greene to argue his case that freeway signs requiring “2 or more persons” in car pool lanes are unconstitutionally vague, since it doesn’t make it clear to, well, idiots and con artists, that actual, living, breathing people are required. Marin County Superior Court judge Frank Drago said the underlying purpose of the law shows why a corporation, even if a person, is not a passenger, saying. “Common sense says carrying a sheath of papers in the front seat does not relieve traffic congestion. And so I’m finding you guilty.”
The judge properly articulated why there was nothing ambiguous about the law, and suggested, as I do, that both Frieman and Greene knew it. But while Frieman’s case was unethical—frivolous (he said he expected to lose) deceitful and an unjustified waste of the public resources required to try him—-his lawyer was not. The legal ethics definition of a frivolous defense in legal ethics is not whether or not it seems ridiculous or whether any reasonable person would assert such nonsense, but whether there is a basis for it in fact and law, including the asserting the defense might provoke a rejection or change in the law involved. This is ABA Rule 3.1:
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”
The lawyer here squeezes into this requirement, just barely. Raising the defense could be defended as an effort to call into question the established judicial fiction (for rights purposes) that a corporation is entitled to many of the rights of a person under the 14th Amendment; this appears to be Frieman’s objective, though I question whether 3.1 was intended to apply to a “good faith argument for an extension, modification or reversal of existing law” other than the one the client is defending against. the defense can be more plausibly justified as the good faith assertion of a loophole in the car pool lane law, though a far fetched one. It doesn’t matter if Ford Greene ( who just has to drive a green Ford) believes his client is being a jerk about this (and he is). The ethics rules ( Rule 1.2) don’t require lawyers to believe in, like, or support their clients’ objectives and theories. What matters is whether there is a sufficient basis in fact and law to make the argument in court. In this case, there is.
This is California, after all. There are undoubtedly judges in that swamp of warped values and reasoning that might accept the intentionally obtuse argument that the legal “personhood” of corporations means that the law has made them literally homo sapiens by decree.
Naturally Frieman, being an Occupy Oakland refugee, a failed lawyer, a scofflaw, or just a trouble-maker, will continue to waste public resources by appealing his silly case.
But there is nothing unethical about a lawyer helping him exercise his right to do so.
That’s a lawyer’s duty.
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Pointer: ABA Journal
Facts and Graphic: San Francisco Chronicle
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
Morons with too much time to spare. As mama told us, idle hands are the devil’s tools.
Jack, the Supreme Court didn’t rule that corporations are people, at least, not in so many words, they didn’t. Or am I being too literal here? Either way, however, Frieman is an unethical idiot.
No, you are quite right, and I should be more specific in the post, which I’ll fix. In Santa Clara County v. Southern Pacific Railroad – 118 U.S. 394 (1886), the SCOTUS reporter famously noted in the headnote to the opinion that the Chief Justice began oral argument by stating, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” Then, t two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania – 125 U.S. 181 (1888), the Court formally affirmed this by holding, “Under the designation of ‘person’ there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution.” This doctrine has been reaffirmed by the Court over and over again through the years, and it’s not going away, Elizabeth Warren notwithstanding.
Where have YOU been?
He’s a dandy. Obviously.
Legally, I think it’s a stretch to assert that the incorporation papers *ARE* the corporation–much like trying to claim that my birth certificate *IS* me.
If he’d had a majority of the stockholders of the corporation in his car, he might have had a case….
–Dwayne
But then, he wouldn’t have needed the case. A Catch-22!
Well, it’s nice to be missed. Actually, I’ve been right here, so to speak. Just not in the comments section. But Ethics Alarms is daily reading for me, except (of course) on those few occasions when one set of of circumstances or the other precludes your being able to post. Anyway, thanks for the information in response to my question. It sounds as though Mr. Franken’s effort to get people to sign a petition that would lead to the Citizen’s United ruling being overturned (how, I can’t imagine) is going to be pretty much a non-starter.
My bad. I just realized Franken’s petition is to create support for a Constitutional amendment that would accomplish his purpose, though I persist in thinking it will be a non-starter. Anyway, I made a misstatement, and apologize.
I’m not a lawyer, but it’s obvious even to a layman that the corporation was not sitting in the seat of the car. This is akin to carrying someone’s birth certificate there, and claiming that’s him! The corporation is not the piece of paper but the people who make up the corporation.