California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 2000
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News Briefs
Election schedule set for board, CYLA vacancies
Bar court judge appointments process to be reviewed
Newest board member dies
Ventura County mobile legal center cited by ABA
ABA offers three CLE programs
Bar, Western State plan annual ethics symposium
Penalty for late bar dues moved to April 28
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Legal Tech - UM: The leading edge of convergence
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Opinion
From the President - Link starting salaries with service
Easy to destroy, hard to rebuild
2 trains on a collision course
Keep the judiciary independent
Letters to the Editor
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MCLE Self-Study
Viewing the Subdivision Map Act
Self-Assessment Test
MCLE Calendar of Events
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Public Comment
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Discipline
Ethics Byte - More on the written agreement
Charges of grand theft, sexual battery lead to bar hearing
Attorney Discipline
Supreme Court
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Continued from Page 1
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the circumstances under which it grants review, it routinely granted petitions seeking review of disciplinary recommendations by the State Bar. Since that time, however, the court has almost always approved the bar court recommendations.

Rose argued that summary denial of a petition for review deprives attorneys of their right to a judicial determination concerning discipline. Further, he said, it amounts to an unconstitutional attempt to invest the State Bar Court with judicial power.

In a 5-2 ruling, written by Chief Justice Ronald George, the court dismissed his arguments. Justices Marvin Baxter, Kathryn Mickle Werdegar, Ming Chin and Stanley Mosk concurred.

The State Bar Court, George wrote, is “simply an administrative arm” of the Supreme Court. It “exercises no judicial power, but rather conducts specialized hearings before making nonbinding recommendations to this court, which then makes an independent judicial determination.”

The court concluded that its summary denial of petitions for review “amounts to an exercise of our jurisdiction and a judicial determination on the merits.”

Justices Joyce Kennard and Janice Rogers Brown dissented, both suggesting that attorneys have fewer due process rights than other professionals licensed by the state, including veterinarians, dentists, cosmetologists and real estate brokers.

The dissent

“The majority’s decision here produces a startling anomaly: attorneys are the only persons whose state occupational licenses can be revoked or suspended without a judicial hearing,” Kennard wrote. “When the right to continue practicing a trade or profession is at stake, only attorneys are denied their day in court.”

If other state-licensed professionals break the law, Kennard said, they are disciplined before administrative tribunals whose orders can be challenged in court. There, the individual has a right to a hearing and a written decision. 

Attorneys, however, do not have that recourse, she said.

Brown, who said she dissented with ambivalence, said the court’s own rule appears to truncate review. “Unless, by dint of skill or luck, the issues are framed so they are deemed to fall within the ambit of [court rules,] an attorney facing suspension or disbarment . . . gets no hearing, no opportunity for oral argument and no written statement of reasons  — from this or any other Article VI court. . . Instead, she gets a summary denial of review, the one-line order. Is that enough? Regrettably, it seems that, for now at least, it will have to do.”

George pointed out that in 1990, prior to its adoption of the procedural rule governing discretionary review of discipline matters, the court issued about 40 opinions a year regarding discipline.

If it were to issue a written opinion or hold oral argument in discipline cases now, George suggested, “such procedures would result in an undue burden upon this court.”

But Kennard suggested petitions for review could be spread among the appellate courts, alleviating the burden.

Rose, who was admitted to practice in 1971, was first disciplined in 1989 for multiple acts of misconduct, including failure to communicate with clients or perform legal services competently, improper client solicitation and improper business dealings with a client.

In 1992, he was disciplined again for similar misconduct. When he did not comply with probation conditions, he was charged by the bar with wilful disobedience of a court order, among other things. His disbarment was recommended.

The court did not act on the disbarment recommendation but indicated it will do so by separate order.