DANIEL JAMES CONWAY, Pеtitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
No. S004556
Supreme Court of California
Feb. 21, 1989.
1107
Arthur L. Margolis for Petitioner.
Diane C. Yu, Truitt A. Richey, Jr., and William Davis for Respondent.
OPINION
ARGUELLES, J.—Petitioner Daniel James Conway, admitted to the practice of law in this state in 1979, was involuntarily enrolled as an inactive member of the bar in January 1988 on the ground that his conduct posed a substantial threat of harm to his clients and the public within the meaning of
In the present case, petitioner was involuntarily enrolled as an inactivе member as a result of conduct apparently attributable to a severe cocaine addiction that began in late 1983 and allegedly reached a peak in 1985 and 1986. No formal disciplinary charges had been brought against petitioner at the time the involuntary enrollment proceedings were initiated by the State Bar, but 11 matters involving client complaints were pending at the investigation stage and complaints had been filed in another 7 matters.2 Petitioner conceded that his addiction had undermined his personal life and professional career, but contended that he posed no present threat to his clients or the public because he had ceased using the drug. For reasons we will discuss subsequently, the referee presiding over the involuntary enrollment matter was not persuaded.
By order filed January 8, 1988, effective January 21, 1988, petitioner was involuntarily enrolled as an inactive member of the State Bar. We denied his request for a stay, but subsequently issued a writ of review in accordance with
We note at the outset that petitioner plainly has a property interest in the right to practice his profession that cannot be taken from him without due process. (Barry v. Barchi (1979) 443 U.S. 55, 64; Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 560; see also Giddens v. State Bar (1981) 28 Cal.3d 730, 735.) That, of course, is merely the beginning of our inquiry here.
“Once it is determined that due process applies, the question remains what process is due. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (Morrissey v. Brewer (1972) 408 U.S. 471, 481.) Here again, we start with substantial agreement. “[T]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” (Mathews v. Eldridge (1976) 424 U.S. 319, 333, quoting Armstrong v. Manzo (1965) 380 U.S. 545, 552.) Our prior decisions and those of the United States Supreme Court identify the factors to which we look in determining what specific procedural safeguards are dictated by due process in a given situation: “First, the private interest that will be affected by the official action; sеcond, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v. Eldridge, supra, 424 U.S. at p. 335; see also People v. Ramirez (1979) 25 Cal.3d 260, 269; Civil Service Assn. v. City and County of San Francisco, supra, 22 Cal.3d at p. 561.)
As this is the first time we have been called upon to consider the validity of the procedures for involuntarily enrolling an active member of the State Bar as an inactive member under
Procedures for the Involuntary Transfer of an Active Member of the State Bar to Inactive Status
The rules first specify generally that such involuntary enrollment proceedings are to be public and they are to be expedited. (Rule 789.) This initial provision thus reflects the statutory goal of preventing harm attributable to the time required for disciplinary proceedings, and the concern with the pace of proceedings is apparent throughout the rules.
The proceeding is commenced by the filing of an application for involuntary inactive enrollment by the Office of Trial Counsel with the Office of the Clerk of the State Bar Court. (Rule 791.) The application must be verified and must set forth “with particularity” the facts allegedly showing that the attorney‘s conduct meets the statutory criteria for involuntary inactive enrollment; i.e., that the attorney‘s conduct poses a substantial threat of harm to the attorney‘s clients or to the public. (Ibid.)
The application must be “promptly” submitted to a single referee appointed by the Presiding Referee of the State Bar Court in accordance with rule 790 and a hearing date set for the matter. (Rule 791.) A copy of the application and all supporting documents must be served by certified mail upon the attorney at the last registered address reflected in the membership records of the State Bar. (Ibid.) Notice of the scheduled hearing date must be given at the same time. (Ibid.) The rules do not explicitly indicate what the hearing date should be, but as they direct the hearing to be held “at the expiration of the [time for the attorney‘s response]” (rule 793) and as the proceeding is to be expedited (rule 789), the necessary implication is that the matter be set for hearing on the first available date after expiration of the response time.3 The hearing may be continued once for good cause, but not for more than 10 days. (Rule 795.)
The attorney has 10 days from service of the application, extended in accordance with the provisions of
The decision of the referee on the application is to be filed and served no later than five days after the hearing or, if no hearing is held, five days after the date set for hearing. (Rule 794.) If the referee determines that the application should be granted, notice of the order is provided to the attorney and to this court in accordance with
Absent from these provisions are any specific directives on the conduct of the proceedings. Rule 796 instead provides: “In proceedings conducted under this chapter [15, commencing with rule 789 and concluding with rule 799 on petitions for retransfer to active status], rules 1-314, 351-414 and 501-534 of these rules shall apply as nearly as may be practicable. All other rules shall be inapplicable to proceedings conducted under this chapter.” Among the rules thus incorporated are the provisions for the issuance of subpoenas (rules 310 through 314), but rendered inapplicable are the other provisions regarding discovery in formal disciplinary proceedings (rules 315 through 324). And, as suggested by the statutory dictate that the decision on the application be “based on all the available evidence, inсluding affidavits” (
Do the Procedures for the Involuntary Transfer of an Active Member of the State Bar to Inactive Status Violate Principles of Due Process?
Petitioner challenges the above-described procedures on a variety of related grounds. He complains that the speed with which the hearing is held deprives a charged attorney of a fair opportunity to prepare a defense, that the rules provide no standards for the admissibility of evidence and fail to preserve the right to confront and cross-examine witnesses, that the hearing is prejudicial to the conduct of any subsequent formal disciplinary proceedings, that the rules vest inordinate power in a single hearing referee, and that there is no guaranty of a prompt final disposition of disciplinary charges if the attorney is transferred to inactive status. He thus challenges the procedures both on their face and as applied, and in essence asserts, in the customary terminology, that neither the predeprivation hearing nor the postdeprivation procedures are adequate to satisfy the requirements of due process. We cannot agree.
We find no merit to petitioner‘s contention that the rules do not offer a charged attornеy a fair opportunity to prepare and present a defense. As indicated above, the rules require at least 10 days’ notice of the scheduled hearing date (rules 791-793), and a continuance of an additional 10 days is available under rule 795 upon a showing of good cause. A showing that the necessary preparation for the hearing could not be completed within the initial 10-day period would no doubt constitute good cause (see State Bar Court Rules, rule 1131(d)), and we find it difficult to conceive that an adequate defense could not be mounted in the period of time provided by the rules.4
Moreover, we find it significant that an attorney faced with an application for involuntary inactive enrollment under
Petitioner suggests that the rules nonetheless fail to guarantee the right secured by
Petitioner finally asserts that the time limitations of proceedings under
Petitioner also contrasts the rules for involuntary inactive enrollment under
First, the two subdivisions address quite different problems. In both cases, the underlying goal, of course, is the protection of the public. But proceedings under
2. Admissibility of Evidence and Examination of Witnesses
Again contrasting proceedings under subdivision (b) of section 6007 with those under subdivision (c), petitioner next objects that the rules governing the latter offer no standards for the admissibility of evidence, that unsubstantiated hearsay is allowed to be the basis of the referee‘s decision, and that confrontation and cross-examination of adverse witnesses is not allowed. Our prior observations on the distinct and different purposes of the two types of proceedings apply with equal force here to rebut petitioner‘s implicit contention that there is no rational basis for the different
There is no inherent problem with the use of hearsay in bar disciplinary matters. (See Younger v. State Bar (1974) 12 Cal.3d 274, 285; Werner v. State Bar (1944) 24 Cal.2d 611, 615.) The reliability of hearsay may vary widely, and even uncorroborated hearsay, without more, may suffice to support an agency decision, provided that such is permitted by statute. (Walker v. San Gabriel (1942) 20 Cal.2d 879, 881.) The command of
Petitioner‘s separate contention that a charged attorney is entitled to confront and cross-examine the witnesses upon whose statements the State Bar relies in seeking the attorney‘s involuntary enrollment on inactive status also fails. Although the right of confrontation may be an essential element of due process before a person can be permanently excluded from the practice of law (see, e.g., Willner v. Committee on Character (1963) 373 U.S. 96, 103-104), the hearing that precedes a temporary deprivation of the right to pursue a particular profession need not offer that same opportunity (see, e.g., Brock v. Roadway Express, Inc. (1987) 481 U.S. 252, 266; Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 545-546). The right of confrontation is not a necessary component of due process in the present context.
Moreover, we would note that
We need not here decide the consequences of a denial of the right to cross-examine witnesses, as we see no indication that petitioner attempted to exercise the right to confront and cross-examine witnesses or that it would have served the purposes of the hearing. We cannot find a due process violation in the failure to do what petitioner did not ask be done, particularly where no showing is made that a denial of the request, had one been made, would have been improper.5
3. Prejudice in Subsequent Proceedings
Petitioner also contends, albeit briefly and without citation of any authority, that the speed with which the involuntary inactive enrollment proceeding is completed creates a likelihood of prejudice to the attorney‘s defense in any subsequent disciplinary proceeding. He does not specify how this prejudice might arise, but simрly contends in conclusory fashion that this manner of proceeding fails to comport with due process.
We disagree. Any subsequent disciplinary proceedings are just that—subsequent, and separate, proceedings. Neither the involuntary inactive enrollment order itself nor any of the findings made in those proceedings is binding or has any probative value in the formal disciplinary case.6 The rules are different, as the attorney is entitled to the full range of discovery procedures and has greater opportunity to prepare a substantive defense to the charges; the hearing panel is different; and any final disciplinary order is subject to review not only by the Review Department of the State Bar Court but by this court as well before it takes effect. We can see no potential for prejudice.
Petitioner next takes issue with the use of a single referee to preside over the hearing and decide the application, asserting—yet again with reference to proceedings under
5. Prompt Final Disposition of Disciplinary Charges
Having considered petitioner‘s contentions in roughly chronological order, we come to what is seemingly his most significant argument: that even if the procedures for placing him involuntarily on inactive status do not violate due process to that point, the failure to guarantee a prompt final disposition of the charges is such a violation and taints the entire proceedings.
In so arguing, petitioner relies mainly on the decision of the United States District Court for the Eastern District of Pennsylvania in Gershenfeld v. Justices of the Supreme Court of Pa. (E.D.Pa. 1986) 641 F.Supp. 1419. That decision held unconstitutional the procedures for the temporary suspension
Given that the procedures governing hearings under
The State Bar has not yet promulgated rules of procedure to implement this new provision, and we do not believe it wise or appropriate for us to establish any fixed constitutional limits at this juncture. The United States Supreme Court has similarly declined to draw any fixed constitutional boundaries in addressing comparable issues, but its decisions do much to refute petitioner‘s contention that the time for completing formal disciplinary proceedings in this state—estimated by him to exceed one year—is unconstitutionally protracted as a matter of law.
In Cleveland Board of Education v. Loudermill, supra, 470 U.S. at page 547, the Supreme Court held that a delay of nine months between a temporary suspension and a final adjudication was not unconstitutional per se—and so held in the context of presuspension procedures that offered the charged party a simple opportunity to respond that was far short of a full contested evidentiary hearing, such as is contemplated by the rules implementing
Most recently, in Federal Deposit Insurance Corporation v. Mallen (1988) 486 U.S. 230, the Supreme Court
We need not here attempt to determine when delay in the final disposition of the underlying disciplinary charges would amount to a denial of due process, although we would question whether a time span of more than one year from inception to the decision of the review department could be countenanced in any circumstances.8 We trust the State Bar will take note of the guidance provided by Loudermill, supra, 470 U.S. 532, and similar decisions in formulating rules of procedure to implement the legislative mandate to expedite resolution of the underlying charges in these cases.9
The question remains as to what effect the absence of any current regulation should have in the present case. Petitioner argues that because the State Bar had established no definite time limit for the conduct of the formal disciplinary proceedings, the order placing him involuntarily on inactive status was unconstitutional and must be set aside. We cannot agree this is the appropriate remedy. As we have seen, the procedures followed by the State Bar at the involuntary inactive enrollment stage fully satisfied predeprivation constitutional requirements. Insofar аs petitioner‘s complaint relates to the State Bar‘s failure to hold a reasonably prompt, final adjudicative hearing, his remedy is to seek such a hearing and to request that his involuntary enrollment on inactive status be vacated in the event of unconstitutionally improper delay.
We thus find no denial of due process in the rules governing proceedings for the involuntary inactive enrollment of attorneys under the provisions of
Did the Evidence Establish That Petitioner Presented a Substantial Threat of Harm to His Clients or the Public?
The statutes do not specify what standard we should employ in reviewing an order of involuntary inactive enrollment, and we have not previously had occasion to address this question. As our review of such orders is provided for in the same statute that permits review of the more familiar orders recommending the suspension or disbarment of attorneys (
As noted previously, the referee found nine specific instances of misconduct involving eight different clients to be established by the evidence, including petitioner‘s own testimony. We have not previously in this opinion described the scope of petitioner‘s misconduct that is reflected in those findings. We do so now.
Petitioner was retained by Mr. and Mrs. B. to handle a personal injury case. He settled their claims in February 1987 for over $15,000, depositing the settlement funds into his own account and using them for his own benefit. Mr. and Mrs. B. were not paid their funds. - Petitioner settled a personal injury claim for Mr. D. in August 1985. Petitioner deposited the $3,000 settlement check in his own account and used the funds. Mr. D. was not paid his funds.
- Petitioner also represented Mr. D. in a contract dispute. Petitioner was given $5,000 to be used to make installment payments to creditors. He misappropriated the funds and did not repay Mr. D., claiming as he did with respect to the settlement check that Mr. D. owed him attorney fees.
- Petitioner accepted $200 from Mr. G. to review a contract. He did not do so. Mr. G. sued petitioner in small claims court and won. Petitioner appealed to superior court and lost. He did not pay the judgment.
- Mr. L. hired petitioner in a quiet title action. Mr. L. and petitioner got into a fee dispute after a settlement was reached, and petitioner refused to do any further work or to surrender any of the file to Mr. L. or new counsel until a court order was obtained.
- Petitioner represented Mrs. M. in a dissolution proceeding. He was directed by the court to prepare a judgment. He did not do so. He was directed to pay opposing counsel $1,430 in sanctions. He did not do so. He was then ordered to pay an additional $1,139 in sanctions, and the court declared petitioner‘s conduct to be willful.
- Petitioner represented Mr. R. in a personal injury case that was settled in 1985 but failed to pay the $1,405 lien held by Mr. R.‘s physician. He paid less than half of the small claims court judgment ultimately obtained by the doctor.
- Petitioner was hired by Ms. S. to write a letter to a contractor. He did not do so, and did not pay the $522 small claims court judgment against him obtained by Ms. S.
- Mrs. W. hired petitioner to handle a personal injury case. He allegedly settled the case without authority, depositing the $2,500 settlement check in his own account and using the funds for his own benefit. Mrs. W. was not paid her funds.
These findings, supported by clear and convincing evidence, estаblished good cause to believe petitioner guilty of numerous instances of misconduct
Respondent testified at the hearing that his misconduct was due to his admitted cocaine addiction, but asserted that he had been under treatment since February 1987, that he had ceased using cocaine at that time—except for a few “slips“—and that he had ceased using the drug entirely as of July 1987. As further evidence of his new drug-free lifestyle, petitioner pointed to a renewed relationship with his fiancée—who had left him once because of his cocaine usage and testified she would not remain with him if he used drugs—and to his employment of a legal secretary of high ethical character—who testified he would not tolerate any departures from proper conduct and would leave petitioner‘s employ if petitioner resumed his drug use. Petitioner thus argued he was no longer a threat to his clients, asserting that his addiction was under control and that his financial commitments had been reduced by, among other things, a relocation of his practice to a more moderately priced location.
As the referee observed, hоwever, petitioner‘s misappropriation of the funds belonging to Mr. and Mrs. B. occurred subsequent to February 1987, a time when petitioner was allegedly under treatment, and the last “slip” into cocaine usage he acknowledged at the hearing was in July 1987, only a few months earlier. That petitioner might not have used cocaine since that time was a record of dubious value in view of his prior lapses after abandoning use of the drug for a few months, as well as the high recidivism rate for cocaine addicts testified to by petitioner‘s own doctor. Even the testimony of petitioner‘s fiancée and secretary failed to offer much support for petitioner‘s assertion, given that his fiancée testified that what petitioner called his “few slips” had been on the order of once every two weeks or so and that his secretary had at the time of the hearing been in petitioner‘s employ for less than three months.
The referee also noted that petitioner did not entirely appreciate the gravity of his misconduct or his duties as a member of the bar. He ignored all State Bar requests for information and for explanations of the basis for client complaints until faced with the application for involuntary inactive enrollment. In fact, he apparently did not reveal to anyone, not even a fellow attorney serving as his advisor and confidant, the scope of his troubles until that application was filed. At the hearing, he continued to assert
In view of petitioner‘s past lapses and history of recurring wrongs, we cannot conclude the referee erred in finding petitioner‘s professed rehabilitation unreliable and insufficient to overcome the strong showing that petitioner posed a substantial threat of harm to his clients and the public. The statutory criteria were established by convincing proof to a reasonable certainty (see Coppock v. State Bar (1988) 44 Cal.3d 665, 677), and petitioner was properly placed on inactive status as a result.
CONCLUSION
We conclude that the procedures for the involuntary inactive enrollment of attorneys under
Lucas, C. J., Broussard, J., Panelli, J., and Eagleson, J., concurred.
KAUFMAN, J.—I dissent.
The majority concludes that the procedures for the involuntary inactive enrollment of attorneys under
DISCUSSION
A. The Power to Discipline Attorneys Resides in the Courts Alone and May Not Be Delegated by the Legislature to the State Bar3
Because attorneys form an “integral and indispensable unit in our system of administering justice,” it is well settled that the profession and practice of the law constitutes a unique public trust. (State Bar of California v. Superior Court (1929) 207 Cal. 323, 330 [278 P. 432].) Accordingly, “the membership, character and conduct of those entering and engaging in the legal profession have long been regarded as the proper subject of legislative regulation and control . . . .” (Id. at p. 331; accord Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 337 [178 Cal.Rptr. 801, 636 P.2d 1139].) At the same time, historically and constitutionally the admission, discipline and disbarment of attorneys have long been recognized as among the inherent powers of the courts alone. (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at pp. 336-337; Brotsky v. State Bar (1962) 57 Cal.2d 287, 300-301 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310]; Brydonjack v. State Bar (1929) 208 Cal. 439, 443 [281 P. 1018, 66 A.L.R. 1507].) “‘An attorney is an officer of the court and whether a person shall be admitted [or disciplined] is a judicial, and not a legislative, question.‘” (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 337, quoting In re Lavine (1935) 2 Cal.2d 324, 328 [41 P.2d 161].)
Recognizing that the regulation of the legal profession “comprehends the existence of common boundaries between the legislative, judicial, and executive zones of power” (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 338, italics added), this court, in a series of early decisions which affirmed the constitutionality of the State Bar Act (act) (
Critical to these early determinations of constitutionality, however, was the fact that under the act, “[f]inal [disciplinary] action can only be taken by this court.” (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 339, quoting Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301, original italics.) As we explained in In re Shattuck: “[T]he only order or orders which are provided for [in the State Bar Act], and which have or were intended to have the effect of working the disbarment, suspension or discipline of any person . . . are the final orders which are to be made by this court under the provisions of said act, and . . . any decision which the Board of Bar Governors may be empowered or minded to make . . . is merely recommendatory in character and has no other or further finality in effecting the disbarment, suspension or discipline of those persons who may be brought before said board . . . .” (208 Cal. at p. 12, italics added.)
Nor, as we explained in a companion case to Shattuck, does the act purport to delegate the inherent judicial authority to admit persons to the practice of law. “The making of orders of admission is . . . clearly a judicial act of this court.” (Brydonjack v. State Bar, supra, 208 Cal. at p. 445;
Among its various functions under the act, the bar is statutorily authorized to “examine all applicants for admission to practice law” and thereafter “[t]o certify to the Supreme Court for admission those applicants who fulfill the requirements . . . .” (
As we explained recently in Saleeby v. State Bar (1985) 39 Cal.3d 547 [216 Cal.Rptr. 367, 702 P.2d 525], in these two areas, the admission and discipline of attorneys, “the bar‘s role has consistently been articulated as that of an administrative assistant to or adjunct of this court, which nonetheless retains its inherent judicial authority to disbar or suspend attorneys. [Citations.] In the area of admission to practice, an applicant is admitted only by order of the Supreme Court which, upon certification by the bar‘s examining committee . . . ‘may admit such applicant as an attorney at law in all the courts of this State . . . .’ (
Thus, even as we have upheld the admission and disciplinary provisions of the act against constitutional challenge, we have consistently warned that the legislative prerogative is limited. The key to a proper balance lies in the locus of decisionmaking authority. As we observed in Brotsky v. State Bar, supra, 57 Cal.2d 287, had the Legislature attempted to vest disciplinary authority in the bar, the constitutionality of the act would have been very much in doubt: “In disciplinary matters (and in many of its other functions) [the State Bar] proceeds as an arm of this court. If the Legislature had not recognized this fact, and made provision therefor, the constitutionality of those portions of the State Bar Act which provide for the admission, discipline and disbarment of attorneys could have been seriously challenged on the ground of legislative infringement on the judicial prerogative. Historically, the courts, alone, have controlled admission, discipline and disbarment of persons entitled to practice before them [citations].” (Id. at p. 300, italics added.)4
Happily, however, the Legislature (until recently) has respected these fundamental separation-of-power principles. In the Board of Governors it
Unhappily, the same cannot be said for the recent legislative augmentation of the act—section 6007, subdivision (c)—which is at issue in this case. As originally enacted in 1968, section 6007 was confined to circumstances in which either (1) a member had been involuntarily committed as a “dangerous person” (
As to attorneys falling within the first category, section 6007, subdivision (a) provides that the board of governors shall reinstate the member when his restoration to capacity has been judicially determined, or upon the member‘s release from confinement. As to attorneys falling within the second category, the statute provides that the board shall terminate the inactive enrollment upon proof that the member‘s disability no longer exists. (
Although the validity of the foregoing provisions has never been tested, and is not at issue here, it is at least arguable that both subdivisions would pass constitutional muster. Both condition involuntary inactive enrollment upon proof of disability, rather than incompetence or misconduct. Indeed, as originally enacted section 6007 was not in any real sense a disciplinary statute. Involuntary enrollment under subdivision (a) requires no independent evaluation of professional competence or ethics, but is premised solely upon a prior judicial determination of mental incapacity. Subdivision (b), which does require independent proof that an attorney has failed competently to perform his duties, is nevertheless limited to those cases in which the source of the attorney‘s troubles is mental infirmity, illness or drug addiction. Reinstatement is not premised upon a showing of moral or ethical rehabilitation, but rather is mandatory upon proof that the disability no longer exists.
Permitting the temporary suspension of a member upon a judicial order of mental incompetence, or upon proof—after notice and a full hearing—of mental disability, constitutes a reasonable and measured exercise of legisla
The same cannot be sаid for subdivision (c) of section 6007. Adopted by the Legislature in 1985 (Stats. 1985, ch. 453, § 2) and subsequently amended in 1986 (Stats. 1986, ch. 1114, § 1), this section permits the bar to order the involuntary inactive enrollment of an attorney “upon a finding that the attorney‘s conduct poses a substantial threat of harm to the attorney‘s clients or to the public. . . .” (
Apart from the significant procedural differences (to be discussed below), the substantive features of an involuntary enrollment proceeding under section 6007, subdivision (c) do not appear to differ significantly from a conventional disciplinary proceeding. Petitioner herein, for example, was found to be culpable of misconduct in eight separate client matters. In four he was found to have improperly commingled and misappropriated funds from settlements which he made on behalf of his clients, in the other four he
The ramifications of the referee‘s decision in this matter were markedly different from the referee‘s decision in a disciplinary proceeding, however. Having found that petitioner‘s habitual misconduct constituted a substantial threat to his client‘s interests and to the public, the referee ordered that petitioner be placed on inactive enrollment.6 That suspension will continue in effect until the bar, upon an application for reenrollment, reverses its decision; until completion of formal disciplinary proceedings; or until this court, under its inherent authority, orders that it be lifted.
It is plain that the proceedings of the bar in this matter cannot withstand constitutional scrutiny. As noted earlier, only the courts may suspend an attorney for disciplinary purposes. (Saleeby v. State Bar, supra, 39 Cal.3d at p. 557; Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at pp. 336-337, 339; Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301; In re Shattuck, supra, 208 Cal. at p. 12.) The Legislature may delegate to the bar, as an administrative arm of the courts, the authority to investigate and to make recommendations in such matters; it may not, however, delegate the inherent judicial prerogative to discipline by means of disbarment or suspension. (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 339; Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301.) Though styled an “inactive enrollment,” the effect of the referee‘s order is clearly that of a “temporary” disciplinary suspension. Hence, the provisions of section 6007, subdivision (c) which permit the bar to order the involuntary inactive enrollment of an attorney are patently unconstitutional.
Of course, it could be argued that invalidating section 6007, subdivision (c) on the ground that it constitutes an unconstitutional delegation of judicial authority is simply not worth the candle. The infringement may be only “temporary” (the attorney is always free to seek a court-ordered stay), while the purported governmental interest in removing incompetent attor
The argument to ignore the constitutional infringement is even less persuasive when one considers that adequate procedures already exist to accomplish the legislative objective of removing dangerously incompetent or unethical attorneys as expeditiously as possible. This court has the inherent authority to suspend an attorney, after notice and an opportunity to be heard, pending review of a disciplinary recommendation. (See Emslie v. State Bar (1974) 11 Cal.3d 210, 230 [113 Cal.Rptr. 175, 520 P.2d 991]; In re Hallinan (1954) 43 Cal.2d 243, 253-254 [272 P.2d 768].) Moreover, if removal is required before thе completion of disciplinary proceedings, there is no reason why the bar may not proceed pursuant to the expedited procedures of section 6007, subdivision (c). However, instead of issuing an order of involuntary inactive enrollment, the bar could file a recommendation with this court that an attorney be placed on inactive status pending completion of the underlying disciplinary proceeding, and request an expedited review and disposition of the matter.
We are not the only state which has perceived the need for a procedure to expedite the suspension of an attorney upon a showing that he poses a substantial threat to his clients or the public. Pursuant to this court‘s request, the bar has provided us with copies of statutes or rules from 10 different states relating to temporary suspension from practice. Each provides, without exception, that when it appears an attorney poses an immediate threat to his clients, the public, or the effective administration of justice, the supreme court of that state may order his immediate suspension pending the completion of full disciplinary proceedings. (See
The State of Wisconsin‘s rules for the interim suspension of attorneys are typical in this regard. The Wisconsin rules state: “(1) The supreme court,
Other states have thus managed to adopt procedures for the expeditious removal of incompetent or unethical attorneys from practice, without having to sacrifice judicial control of attorney discipline. We in California certainly could effect a similar accommodation. Indeed, as noted earlier, the procedures are already at hand.
In advising this court on matters of attorney admission, discipline and disbarment, the bar performs a critical and thankless task. Unnecessary impediments should not be placed in its path. The imposition of attorney discipline, however, is the sole and exclusive prerogative of the judiciary. In my view, it should remain so. I would hold, therefore, that the provisions of section 6007, subdivision (c), which in effect permit the bar to discipline a member by means of an order that he be placed on involuntary inactive enrollment, are unconstitutional.
B. The Failure to Require a Prompt Disciplinary Hearing Constitutes a Violation of Due Process
Even assuming, arguendo, that the bar could constitutionally impose a temporary suspension pursuant to section 6007, subdivision (c), the absence of a statutory requirement that the bar also provide, within a reasonably prompt period of time, a full and final determination of the underlying disciplinary matter, renders the statute constitutionally suspect on its face.
Indeed, the majority opinion concedes, in light of the “reduce[d]” time an attorney has to meet the charges against him and the fact that he enjoys “fewer rights” than attorneys facing adverse action under other statutes, “‘that a final disposition is required at some point to validate the procedures governing the predeprivation hearing.‘” (Maj. opn. at p. 1121, italics add
“At some point” in time is cold comfort to an attorney whose practice is quietly disintegrating while the bar fiddles. I do not question the bar‘s good faith in such matters. It is apparent, however, that “at some point” provides absolutely no time limit and precious little incentive to the bar to proceed expeditiously with the underlying disciplinary matter. Why should they? The attorney has already been placed on indefinite suspension.
The instant matter provides a case in point. At the time of the involuntary enrollment proceeding against petitioner, no formal disciplinary charges had been filed, although investigations into eleven matters were underway and client complaints in another seven had been filed. After the order placing petitioner on involuntary inactive enrollment became effective on January 21, 1988, the bar delayed until April 11, 1988, an additional three months, to issue an order to show cause. Moreover, thе charges in the order to show cause excluded two of the eight matters which formed the basis of petitioner‘s involuntary inactive enrollment. To our knowledge, formal charges in these two matters have still not been filed, more than ten months after the effective date of the bar‘s order of involuntary inactive enrollment.
The United States Supreme Court has recognized that due process imposes restraints on the timing as well as the form of a postdeprivation hearing. The due process constraints will depend, in each case, “on appropriate accommodation of the competing interests involved.” (Goss v. Lopez (1975) 419 U.S. 565, 579 [42 L.Ed.2d 725, 737, 95 S.Ct. 729]; see also Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 557 [84 L.Ed.2d 494, 513-514, 105 S.Ct. 1487] [conc. and dis. opn. of Brennan, J.].) The relevant interests have been recognized as threefold: the importance of the private interest and the length or finality of the deprivation, the magnitude of the governmental interest, and the nature of the procedure used. (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 96 S.Ct. 893]; Goss v. Lopez, supra, 419 U.S. at p. 579.)
Weighing these factors, I cannot agree with the majority that due process is satisfied so long as the bar provides a final disposition “at some point.” It is undisputed that petitioner has a substantial property interest in his license
The governmental interest in protecting the public from incompetent or unethical attorneys is substantial. However, that interest is adequately served once the attorney is placed on temporary suspension. Fairness compels that a reasonably prompt commencement of final disciplinary proceedings should immediately follow if it has not preceded the temporary suspension.
The Massachusetts Supreme Court reached a similar conclusion in the Matter of Kenney (1987) 399 Mass. 431 [504 N.E.2d. 652], a decision which the majority cites with approval. (Maj. opn. at p. 1121.) Following a preliminary hearing, an attorney was placed on temporary suspension pending a full disciplinary proceeding. The Massachusetts court determined, in agreement with the majority in the instant case, that “a temporary suspension [after a limited preliminary hearing] without a final adjudication would not be constitutional . . . .” (Id. at p. 656.) The court observed further that “[s]ince the rule does not specify when formal disciplinary proceedings must be instituted . . . we interpret the rule to require that disciplinary proceedings, if not already begun, must be instituted within a reasonable time.” (Ibid., italics added.)
The Massachusetts court did not venture to suggest a specific time period within which a disciplinary proceeding, assuming that one has not already commenced, must be initiated. However, given the fact that in this state it is not unusual for a disciplinary hearing to commence six months or more after the issuance of a notice to show cause, I would hold, at a minimum, that a notice to show cause on the underlying disciplinary matter must issue within 30 days after the effective date of an involuntary inactive enrollment under section 6007, subdivision (c). A similar 30-day requirement is contained in the rules governing temporary suspensions of attorneys in the State of Pennsylvania. (
The majority‘s reliance on Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532, for the proposition that a delay of even nine months is not unconstitutional, is misplaced. In that case, the court held merely that Loudermill “failed to allege facts sufficient to state a cause of action, and not that nine months can never exceed constitutional limits.” (Id. at p. 554 [conc. and dis. opn. of Brennan, J.].) Nor does Loudermill suggest that affording the petitioner a predeprivation hearing discharges the bar‘s responsibility to move with dispatch thereafter. On the contrary, the court reaffirmed the need to balance the respective interests at stake in determining the timing and form of the postdeprivation hearing necessary to satisfy the requirements of due process. (470 U.S. at pp. 542-543.)
Absent the requirement of a reasonably prompt postdeprivation notice of formal disciplinary charges, I would hold that section 6007, subdivision (c) violates due process.9
C. Petitioner Was Denied Equal Protection of the Law
Aside from the separation-of-power and due process infirmities apparent from the face of the statute, it is also clear that petitioner was denied equal protection of the law under section 6007, subdivision (c) as applied.
Petitioner appeared to satisfy the criteria of section 6007, subdivision (b) in every respect. Indeed, his was virtually a textbook case of an attorney disabled and unable to practice competently or safely “because of the habitual use of . . . drugs.” Why, then, did the bar not proceed against petitioner under this subdivision? Although the record is silent, one answer is perfectly obvious. Unlike subdivision (c), with its hurry-up 10-day notice rule, constricted discovery and anything-goes rules of evidence, subdivision (b) proceedings are conducted in the normal fashion, with the usual procedural safeguards of notice, discovery and evidentiary rules in place.
Thus, under the statute as currently constituted, another attorney, identically situated to petitioner, identically addicted and disabled, and posing an identical risk of harm to the public, could nеvertheless enjoy full due process protection if the bar decided to seek an involuntary enrollment under subdivision (b) rather than (c). It is well settled that the state “cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment” (Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 238-239 [1 L.Ed.2d 796, 801-802, 77 S.Ct. 752, 64 A.L.R.2d 288]), nor “arbitrarily foreclose to any person the right to pursue an otherwise lawful occupation.” (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 579 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]; accord Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 293 [101 Cal.Rptr. 896, 496 P.2d 1264, 53 A.L.R.3d 1149].)
There is nothing in the statute or the record to justify the bar‘s disparate treatment of petitioner. “‘Action is arbitrary not only when it is capricious, but also if it lacks adequate support in the record, when the facts do not justify the conclusion.‘” (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 786-787 [97 Cal.Rptr. 657, 489 P.2d 537], quoting Hollon v. Pierce (1967) 257 Cal.App.2d 468, 478 [64 Cal.Rptr. 808].) The record and the statute in question yield absolutely no rational basis for the bar‘s decision to proceed against petitioner under the provisions of subdivision (c) rather than the more directly applicable provisions of subdivision (b). The only
The majority strains to find a valid distinction in the purposes underlying subdivisions (b) and (c). The former, it is alleged, is merely “aimed at preventing the risk that . . . the attorney may not be able to perform competently or . . . without . . . danger to clients or the public.” (Maj. opn. at p. 1117, italics added.) Under subdivision (c), the attorney must be found “to have already caused . . . harm . . . and there must be a reasonable threat such harm will recur or continue.” (Maj. opn. at p. 1117, italics added.) These alleged distinctions, however, are at odds with the plain language of the statute. Subdivision (b) expressly provides that the bar may not institute proceedings unless it finds “after preliminary investigation or during the course of a disciplinary proceeding, that probable cause exists therefor.” It is reasonable to infer that such an “investigation” or “disciplinary proceeding” would be based on some prior misconduct. The bar must also find that the attorney is “unable or habitually fails” to perform his duties. Such a finding would be extremely improbable absent some tangible case or cases in which the attorney has already failed to perform his duties. Clearly, both subdivisions (b) and (c) contemplate proof of prior misconduct and harm to clients or the public.
Equally unpersuasive is the assertion that only subdivision (c) requires proof of future misconduct. What would be the point of seeking involuntary enrollment under either subdivision unless the misconduct and risk of harm were likely to recur or continue?
Though the majority purports to find “no lack of justification for the different procedures” under subdivisions (b) and (c) of section 6007 (maj. opn. at p. 1117), in point of fact the only justifications they offer are baseless. There was no legitimate reason to deny petitioner in this matter the full range of procedural protections otherwise accorded members of the bar under section 6007, subdivision (b). For this reason, I would hold that section 6007, subdivision (c) is invalid as applied.
Mosk, J., concurred.
Notes
Article VI, section 1 provides: “The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of record.”
Article III, section 3 provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
Although not here applicable, recent legislative amendments to section 6007 (Stats. 1988, ch. 1159, § 1) modified the prerequisites set forth in subdivision (c)(2) to read as follows: “In order to find that the attorney‘s conduct poses a substantial threat of harm to the interests of the attorney‘s clients or the public pursuant to this subdivision, each of the following factors shall be found, based on all the available evidence, including affidavits: (A) The attorney has caused or is causing substantial harm to the attorney‘s clients or the public.
“(B) The attorney‘s clients or the public are likely to suffer greater injury from the denial of the involuntary inactive enrollment than the attorney is likely to suffer if it is granted, or there is a reasonable likelihood that the harm will reoccur or continue. Where the evidence establishes a pattern of behavior, including acts likely to cause substantial harm, the burden of proof shall shift to the attorney to show that there is no reasonable likelihood that the harm will reoccur or continue.
“(C) There is a reasonable probability that the State Bar will prevail on the merits of the underlying disciplinary matter.”
The 1988 legislative amendments also added subsection (3) to subdivision (c), which provides as follows: “In the case of an enrollment under this subdivision, the underlying matter shall proceed on an expedited basis.”