California Bar Journal
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Discipline committee rejects posting minor offenses on web
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The State Bar will not post on its web site some minor disciplinary actions taken against its members, despite a staff recommendation and a court ruling that such information should be available to the public. By two 4-3 votes, the board of governors discipline and regulation committee decided not to post so-called private reprovals with public disclosure which were imposed against attorneys prior to July 1.

Committee members opposed to full disclosure said attorneys who agreed to private reprovals before the advent of the internet had no idea the discipline would one day be flagged on a website.

But bar executives said the information already is available to the public, either by phone or by visiting a bar office. “It is public information,” said chief State Bar Court counsel Scott Drexel. “There’s no reason to make people jump through hoops to get it.”

The issue arose because the bar is preparing to put significant amounts of discipline-related information on its website,

Some attorneys who face discipline for relatively minor offenses, such as not returning clients’ phone calls or failing to promptly return files, are reprimanded with a low-level punishment called a private reproval. If the reproval is agreed to before charges are filed, it remains secret. That option is an important tool for prosecutors, Drexel said.

Once charges are filed, however, an attorney’s discipline becomes a matter of public record; thus,  private reproval with public disclosure, something of a misnomer which regulators admit they’d like to change.

Some bar members have complained that when they agreed to a private reproval, the bar said it would not “affirmatively publish” that information and the website listing violates that agreement.

In fact, southern California attorney Michael Mack challenged the website disclosure of his 1995 private reproval in court. Los Angeles Superior Court Judge Madeleine Flier ruled against him, finding that the availability of public records on the web does not constitute publicity, but is simply another vehicle for providing information to the public, akin to a phone call.

Mack has appealed Flier’s decision.

The board of governors decided last February not to post private reprovals imposed before July 1, when the bar’s rules of procedure were amended to make public all private reprovals reached after charges are filed. In light of the Mack case, the staff asked the board to reconsider and post all private reprovals with public disclosure. “We see no reason to make a distinction between reprovals imposed before or after July 1,” Drexel said. “It comes down to whether putting the information on the website is publishing.”

Board member Pat Dixon of Los Angeles believes posting the informa-tion on the internet is just that and violates agreements reached years ago.

“A phone call is more in keeping with the deal we made with these people a long time ago,” he said.

Palmer Madden of Alamo agreed that old reprovals now might violate agreements made pre-internet. “It shouldn’t be done retroactively,” he said.

But board member Karen Nobumoto, who favored posting the discipline listing, said going on the internet is no different than making a phone call.

Drexel said modifying the web page to treat the old private reprovals differently will cost $16,000 and postpone updated listings by 60 days.