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. |
