By Charles V. Berwanger
On February 11, 2020 the State Bar Court of California Review Department in the Matter of Gregory Melvin Haynes, case number 16 – J – 17 208 (not designated for publication) upheld the State Bar Hearing Judge’s finding that misconduct committed by attorney Haynes found by the federal court to require his disbarment from practicing before the Northern District, warranted reciprocal discipline by the State of California. Mr. Haynes was thereupon suspended for three years, with nine — month actual suspension, from his right to practice law in the State of California.
The purpose of this article is to highlight the fact that the four California District Courts all have the power to impose discipline including suspension and disbarment from the right to practice law before that particular District Court; and that such imposition may result in reciprocal discipline by the State Bar California. Discussed herein will be the specifics of Mr. Haynes’ sanctionable conduct, the federal court’s action to sanction Mr. Haynes, and the California State Bar’s follow-up discipline. Also, there will be a discussion of the discipline system established by the Southern District’s Local Rules.
What did Mr. Haynes do to garner the activation of the discipline machinery of the Northern District? Mr. Haynes’ misconduct originated in his representation of Cheryl Cotterill commencing 2007 in which he filed a complaint on her behalf, alleging federal civil rights and common-law tort claims against a variety of defendants, including the City and County of San Francisco and the Regents of the University of California. During the meet — and — confer stage of the litigation, Mr. Haynes refused to cooperate and responded with profanity and unprofessional comments to opposing counsel. He did not inform Ms. Cotterill of a missed deadline to oppose a motion for summary judgment. The district judge thereupon granted the motion stating that Mr. Haynes’ conduct was reprehensible, noting that his submissions were consistently dilatory, rambling, and legally deficient. Mr. Haynes failed to advise his client of defendants’ motion for attorneys fees and costs. He thereupon perfected an appeal, which the client specifically told him not to file. Mr. Haynes’ second matter which garnered the district court’s discipline involved equally ethically improper conduct.
The Northern District’s rules impose upon all counsel a requirement that they comply with the standards of professional conduct imposed by the State Bar of California; comply with local rules; practice with the honesty, care, and decorum required for the fair and efficient administration of justice; and discharge his or her obligations to his or her client and the court. Applying those rules the court found it undisputed and that the evidence was clear that Mr. Haynes had failed to comply with discovery obligations and orders of the court; had failed to practice law in the district court with the honesty, care, and decorum required for the fair and efficient administration of justice; had shouted profanities at opposing counsel; had misled the court; and had failed to cooperate and participate in the disciplinary investigation in violation of Business and Professions Code section 6068, subdivision (i). Based upon the foregoing, the court determined that Mr. Haynes should be disbarred from practicing before the Northern District.
The State Bar thereupon became involved and after reviewing the record before the Northern District determined to discipline Mr. Haynes. In doing so, the Review Department observed that “the District Court’s final order is conclusive evidence that Haynes is culpable of professional misconduct in California.” In response to Mr. Haynes’s argument that the culpability findings were not decided under the clear and convincing evidence standard applicable to State Bar discipline proceedings, the Review Court rejected this argument concluding that the “District Court made its culpability findings based on undisputed evidence, and we may rely on findings from foreign jurisdictions with different evidence standards when considering culpability in reciprocal discipline cases.” (Business and Professions Code section 6049.1 provides that a final order determining that a California lawyer has committed professional misconduct in another jurisdiction is “conclusive evidence that the licensee is culpable of professional misconduct in this state…”) Addressing the specific findings by the District Court, the Review Court determined that Mr. Haynes violated various provisions of the Business and Professions Code as well as the then applicable Rules of Professional Conduct, including those requiring that counsel perform with competence (former Rule 3-110), that counsel keep clients informed about significant developments (3-500), that counsel promptly release client’s file (3-700), that counsel not mislead a judge (5-200), and that counsel cooperate in disciplinary proceedings (B&P section 6068(i)). “These violations conclusively establish culpability in California.”
Although the Southern District was not the source of the discipline leading to State Bar discipline, the Southern District provides by Local Civil Rule 2.2 for “discipline” for violation of Civil Rule 2.1 entitled “professionalism.” The professionalism rule specifies a Code of Conduct which includes principles of civility, specific duties owed to the court, and specific duties owed to other lawyers, parties and witnesses. Under Rule 2.2 the “discipline” process includes an initial investigation of whether or not discipline should be imposed and a decision-making process to determine whether not to impose discipline. Rule 2.2e provides that the “standing committee on discipline” will investigate any charge or information, referred by one of the judges, that any member of this court or any attorney permitted to practice in the court has been guilty of unprofessional conduct.” If the committee determines that it is “advisable to prosecute a disciplinary proceeding” it then files with the court a petition addressed to the court’s judges. Thereupon, the proceeding will be assigned to one of the judges who will supervise a proceeding to determine whether not respondent should be disbarred, suspended or otherwise disciplined.
Finally, the Local Rules require that notice of any determination to impose discipline be provided to the State Bar California. Similarly, Business and Professions Code section 6068 (o) requires an attorney to report any sanction or discipline to the State Bar.
The foregoing highlights the fact that the federal and state courts have interrelated disciplinary proceedings and that discipline taken by one court may very well have adverse impact upon the right of counsel to practice law before the other court. The instance of Mr. Haynes, although it may involve extreme conduct, is instructive on the substantial deference provided by the State Bar of California to discipline imposed by another court system.
Charles V. Berwanger is Partner with Gordon Rees Scully Mansukhani.