By Edward McIntyre
A recent State Bar Court discipline opinion underscores that we, lawyers, should take a court’s order seriously — very seriously — at our peril.[1] The facts of the case drive the point.
The State Bar charged Smith with failure to obey a court order, a violation of Business and Professions Code section 6103. Specifically, the order was the State Bar Court’s own order of interim suspension because of Smith’s criminal conviction, which required him timely to comply with the provisions of California Rules of Court, rule 9.20(a) and (c) — within 30 days, to notify clients, co-counsel, opposing counsel and courts of his interim suspension; return client documents and unearned fees; and timely file an affidavit of compliance.
The Review Department had ordered Smith be put on interim suspension—as Business and Professions Code section 6102, subdivision (a) provides—because of his criminal conviction of a felony that may have involved moral turpitude.[2] The Court’s February order was sent to Smith’s membership address on file with the State Bar, but he was in jail at the time, having failed to appear at a hearing in his criminal matter.
Smith testified at the Hearing Department trial that he did not received the Court’s order until after the disciplinary process had begun. He did, however, learn from his criminal defense lawyer that he had been on interim suspension; he also knew from experience that he had to inform clients of his interim suspension and file a declaration, but he was not aware of the deadline. He relied on another lawyer regarding compliance with the State Bar.
When Smith was released from custody, he began to work with that lawyer to notify clients and co-counsel of his suspension and, in July, filed a declaration that said he had contacted all but two clients within 30 days after his release from jail—by end of May. He did not contact the two until June and July, respectively, because of clerical error.
The State Bar sent Smith a notice that his July declaration was non-compliant because it did not have his original signature. He said that he did not receive the notice until October because it went to his previous office address. The State Bar found his second, rule 9.20 October, declaration was also non-compliant for reasons the opinion does not detail.
The Hearing Department judge found that Smith failed strictly to comply with the order because he failed timely to notify the two clients of his suspension and because he failed timely to file a compliant declaration; that he violated section 6103 because of clear and convincing evidence that he knew about the February order, knew what he had to do and failed to comply.
The Review Department held that a lawyer willfully violates section 6103 when the lawyer is aware of a court order and knowingly takes no action to respond to it or chooses to violate it; the lawyer faces discipline even if the lawyer did not intentionally act in bad faith in violating section 6103. Because the February order was properly mailed to Smith’s State Bar address, he had notice of the order; in addition, he testified at trial that he knew the order existed but did not get a copy or instruct anyone else to get him a copy.
The State Bar Court was categorical: “As officers of the court, obedience to court orders is intrinsic to the respect attorneys must accord the judicial system. Smith willfully violated section 6103 when he knew of the February Order, and failed to exercise his responsibility to the judicial system by ensuring that he timely complied with rule 9.20(a) and (c), as the order required.”[3]
The Hearing Department trial judge recommended a one-year actual suspension as proper discipline. The Review Department panel, unanimously upholding all the trial court’s findings, nonetheless found a six-month actual suspension, with many other conditions, more appropriate for a lawyer practicing for 14 years with no prior record of discipline and in light of other discipline cases.
“A six-month actual suspension should also convey to Smith the gravity and consequences of his actions.”
Consider that the Court’s order went to Smith’s State Bar address while he was in jail; that, although he knew about the order, he did not actually see it until much later; that he timely notified all his clients but two—because of clerical error—and notified one of them within a month, the other within two; that his July declaration was non-compliant because of a missing original signature; that the second declaration was non-compliant for unstated reasons. That brings about a six-month actual suspension for the practice of law—reduced from a one-year actual suspension.
Although the decision is listed as “not designated for publication” and, thus, not precedential, it is published on the State Bar Court website and Mr. Smith’s State Bar page. It appears the State Bar Court is telling all of us about “the gravity and consequences” of not complying—timely and strictly—with court orders. Verbum sap sat? “A word to the wise is sufficient!”
[1] In the Matter of Spencer Freeman Smith (Review Dept. 2019) Public Matter, Unpublished Decision, Case No. 17-O-00668 (February 12, 2019). Although the decision is unpublished, and thus not precedent, it is important guidance how the Court addresses a lawyer’s failure to obey a court order.
[2] In the Matter of Smith, State Bar Court No. 12-C-14836.
[3] Case No. 17-O-00668, at p. 7.
Edward McIntyre is an attorney at law.
This article was originally published on the SDCBA blog. Click here to view.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**