Going to the Mountain: Supreme Court Review of Discipline Cases

Part of my daily routine is visiting the State Bar Court website to see if any new Review Department decisions have arrived (https://www.statebarcourt.ca.gov/Review-Department-Dispositions). The State Bar Court is an administrative law court within the judicial branch that adjudicates discipline and other attorney regulation matters. The Review Department is the appellate court in this system; its three judges hear appeals from the five judges in the Hearing Department and have original jurisdiction on some matters.

The State Bar Court has been created by the Legislature but it had been described as the administrative arm of the California Supreme Court for the purposes of attorney regulation, chiefly discipline and licensure. For that reason, most decisions of the State Bar Court are couched as recommendations to the Supreme Court, although the State Bar Court is empowered by statute to issue reprovals (Bus. & Prof. Code section 6077). In the normal course, discipline recommendations go up the mountain from both departments of the State Bar Court and are almost always approved; to my knowledge, in the 33 years I have been involved in the discipline system, only one discipline recommendation has been disapproved.

But there is another route to review by the high Court and that is filing a petition for review of a State Bar Court (Cal. Rule Ct. 9.13 generally with special requirements for the Office of Chief Trial Counsel (OCTC) in Cal. Rule Ct. 9.14.) This route requires exhaustion of remedies in State Bar Court by requesting review from the Review Department first (Cal. Rule Ct. 9.13(e)(1).) It is also completely within the discretion of the Supreme Court. In In Re Rose (2000) 22 Cal. 4th 437, the Court held, over the dissents of Justices Kennard and Brown, that the Court was not constitutionally required to hear a petition for review from a respondent. Since the State Bar Court in its current full-time professional form was created in 1989 and the “finality” rules in Title 9 of the California Rules of Court were enacted in 1992, the Court has taken up petitions from only a handful of respondents and in all but one of those matters (In Re Morse (1995) 11 Cal. 4th 190), the respondent has been disbarred, as was Mr. Rose. OCTC has not done much better; only one petition for review has been accepted and resulted in a published discipline opinion, In the Matter of Grant (2014) 58 Cal.4th 469. That case resulted in the State Bar Court’s recommendation of two years actual suspension increased to disbarment. It is hard not to form the impression that the Supreme Court is only interested in taking up discipline cases for full review when the discipline is perceived as too lenient or some legal issue, such as the scope of the summary disbarment statute (see In re Lesansky (2001) 25 Cal. 4th 12), needs clarifying.

The lack of Supreme Court interest is by design. If you pick up and leaf through the California Reports from the 1970s and 1980s (I know: how quaint) you will be astonished at the amount of dead trees devoted to attorney discipline matters. The explosive growth of the legal profession in those decades dramatically increased the number of discipline matters and the pre-Rose Court still felt an obligation to take them up. Part of the reason for creating a full-time professional State Bar Court with the ability to publish its own decisions as guiding precedent (at least in State Bar Court) was to relieve the high court of this responsibility. And it worked. The number of published discipline cases from the California Supreme Court since 1992 will be accommodated by your two hands.

Petitions for review still get filed, of course. The State Bar Court website now accounts for them with a new category “Opinions Designated for Publication” designed for opinions that have been published under State Bar Rule of Procedure 5.162, thus potentially citable but that are the subject of a pending Supreme Court petition. And, in a lovely display of symmetry, there are two, one a petition filed by a respondent (In the Matter of Shkolnikove) and one a petition filed by the OCTC (In the Matter of BB.) Both cases contain interesting issues that might actually tempt the Supreme Court to fully consider these cases. In Shkolnikove, the Review Department increased the recommended level of discipline from 45 days actual suspension to six months, reversing the Hearing Judge’s determination that Mr. Shkolnikove was a more credible witness than his former client Herrera, in spite of the long-standing principle that a Hearing Judge’s determination of credibility is entitled to great deference. In BB, the Review Department upheld the Hearing Department’s imposition of an admonition, a non-disciplinary disposition, in a case that involved a San Francisco Public Defender found to have demonstrated disrespect for the court (Bus. & Prof. Code section 6068(b)) and to have disobeyed a court order (Bus. & Prof. Code section 6103) in interfering with the arrest of his disruptive client in court. These offenses typically result in actual suspension and OCTC sought 30 days actual suspension at trial and before the Review Department.

Of course, it might be wishful thinking. I have long felt that the Supreme Court withdrawal from the discipline process in the 1990s was not a positive development and although they gotten more involved in recent years on the administrative side, that has not thus far translated to the litigation side. New Supreme Court case law in my area of jurisprudence is a rare treat. One can dream.