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, www.calbar.org.
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. |
