The State Bar has the right to post on its web site
disciplinary actions taken against its members, a Los Angeles judge ruled, saying it’s
no different than getting information over the telephone. Superior Court Judge Madeleine
Flier dismissed a suit brought by MICHAEL MACK [123888], 41, of Corona del Mar,
who received a “private reproval with public disclosure” in 1995. Mack said the
bar violated an agreement it reached with him that it would not “affirmatively
provide any publicity” about the disposition of his case in exchange for his
stipulation to misconduct.
Mack accused the bar of breach of contract and sought declaratory and
injunctive relief.
But Flier agreed with State Bar attorneys, who said private reprovals
issued after the initiation of formal public proceedings always have been subject to
public disclosure. Indeed, bar lawyers argued, such disciplinary actions taken against
lawyers in California are public, and in placing the information about Mack on its web
site, the bar simply made its membership files, traditionally available by tele-phone,
accessible electronically.
“As a matter of law,” Flier said, “making the database
of public records available for inquiries via the web is not publicity, but instead
another vehicle for making bar files available to the public upon their initiating the
request — similar to an in-office visit or telephone call.”
Mack was disciplined for failing to respond to clients’
inquiries, failing to return a client’s file, and three counts of failing to maintain
respect due to the courts. He also did not cooperate with the bar’s investigation. He
had been charged with misconduct in five separate cases.
The stipulation lists as mitigation Mack’s alcoholism, and said
he was sober and attending daily meetings of Alcoholics Anonymous at the time. As part of
the reproval, he was required to attend ethics school and take the professional
responsibility exam.
He has been an attorney in good standing at all times since his 1986
admission to the bar, save a short period of administrative inactive enrollment due to
non-compliance with MCLE requirements.
Prior to the availability of membership records online, any member of
the public could call the bar seeking information about California lawyers.
Following the 1997 veto of the bar’s fee bill, those records
became available online in anticipation of layoffs in the membership services department.
The records include a member’s address, phone number,
educational background and year of admission. Another click can determine whether the
lawyer has a record of discipline, but the web site provides no specifics about the
discipline.
Mack said that as a result of the web site listing, his reputation
was harmed and he suffered monetary damages.
The bar argued there was no contract between it and Mack because the
relationship was judicial and regulatory in nature. In addition, although the reproval is
termed “private,” the file, the stipulation and any orders are public and
available to the public upon inquiry, the bar said.
The web site does nothing more than provide the same information that
could be obtained in hard copy from the bar, its attorneys argued. Mack “in effect is
arguing that the State Bar may maintain only hard copy and not electronic records,”
they wrote. |
