California Bar Journal
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Court approves disclosure of some private disciplines
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Anyone seeking information on solo practitioner Michael J. Mack can enter his name into the State Bar's internet search engine, click on a link, and up will pop this message: "This member has a public record of discipline."

And so it shall remain. Last month, the 2nd District Court of Appeal scrapped Mack's lawsuit, Mack v. State Bar of California, which contended the bar breached a stipulated agreement that it would not publicize his 1995 private reproval.

Mack was apparently upset to learn in 1999 that his disciplinary history was posted on the bar's web site. He demanded the information be removed, but the State Bar refused. He filed a petition with the State Supreme Court, but it was denied. A Superior Court claim seeking damages and an injunction was also tossed out.

The appellate court ruled that simply providing general public information about Mack's status did not violate the agreement. The web posting noted only that Mack has a record; it did not give details of the misconduct that got him in trouble.

"In response to the State Bar's use of this new technology, Mack makes a Luddite's argument," wrote Los Angeles County Superior Court Judge Thomas Willhite Jr., who was sitting by designation.

"While this information is now theoretically available around the globe, we doubt that internet users in India, much less Indiana, will be scouring the State Bar's website for information about Mack or any other California lawyer," he continued.

The California Bar Journal publishes discipline summaries about attorneys who are disbarred, suspended, or placed on interim suspension and lists public reprovals; private reprovals are not published. The bar releases information about them only on request.

To get details of Mack's private reproval - the bar's mildest discipline - the press, public and fellow attorneys can call the bar's press office, where the information can be had for free, schedule a viewing of the file at State Bar Court, or send for a copy and pay a fee.

The 42-year-old Corona Del Mar attorney had stipulated to one count of misconduct; four other counts were dismissed. He received a private reproval with public disclosure, which means that the bar would not, on its own, make the discipline public. He said he would not have agreed to the stipulation had he known the information would be made available on the web.

But the court said Mack knew at the time of the stipulation that his discipline would be part of the public record.

"As for Mack's assertion that internet access was beyond his contemplation when he entered the stipulation in 1995, we note that the internet was not in its infancy and was not some futurist's flight of fancy," the court held. 

"Regardless, Mack knew his disciplinary history would become a public record that would be available on request," Willhite continued. "He could not reasonably expect that the methods available for gaining access to his records would remain frozen in amber, unaffected by new technologies."