By David C. Carr
Division 3 of the Fourth District Court of Appeal made headlines in February 2019 with its decision in Martinez v. O’Hara (2019) 32 Cal.App.5th 853. In that decision, the court referred the plaintiff’s lawyer to the California State Bar’s Office of Chief Trial Counsel (OCTC, the discipline prosecutor’s office) based on the lawyer’s reference to a female judge’s ruling as “succubistic.” Citing the definition of a succubus “as a demon assuming female form which has sexual intercourse with men in their sleep” the appellate court published the part of the opinion finding misconduct “to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”
The authority cited for the court’s action was Code of Judicial Ethics Canon 3D(2): “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.” Despite the seemingly optional language regarding reporting misconduct, the court interpreted the advisory committee commentary accompanying canon 3D(2) as imposing a mandatory reporting requirement to the State Bar regarding lawyer misconduct.
The court cited Business & Professions Code section 6068(b) requiring an attorney to maintain the respect due the courts, as well as new Rule of Professional Conduct 8.4.1 addressing gender bias. Even though the attorney’s misconduct predated the enactment of the rule, the court concluded that the attorney’s conduct would have violated the rule.
In addition to his characterization of the judge’s ruling, the attorney accused “the trial court of intentionally refusing to follow the law… and the statement in the notice of appeal suggesting the trial court tried to prevent plaintiff from receiving notice of the signed judgment in an effort to thwart appellate review of its decision, also made without any support in the record, constitute reportable misconduct.
The court also cited the attorney’s use of other colorful nomenclature in the appellate briefs: “We further note that many of the words and phrases in the notice of appeal have no place in a court filing. We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or ‘reverse peristalsis’ in the notice of appeal.” Martinez, at 857.
OCTC takes complaints from judges very seriously. In July 2020 OCTC notified the lawyer that it intended to file discipline charges based on violations of section 6068(b). Consistent with prefiling requirements in the State Bar Court, OCTC provided the lawyer with a copy of the charging document that it intended to file to initiate the formal discipline process, called a notice of discipline charges (NDC) in discipline jargon. OCTC filed the NDC in the State Bar Court on August 11, 2020, initiating the formal discipline process (State Bar Court case no. 20-O-30496; accessible at https://apps.statebarcourt.ca.gov/dockets.aspx.)
But on the same day, the lawyer filed an action in the United States District Court for the Central District of California, seeking to enjoin the State Bar from prosecuting the disciplinary action under 42 U.S.C 1983 as an attempt to deprive him of his constitutional rights, arguing that “lawyers are as a matter of First Amendment advocacy and freedom of thought and speech, entitled to choose any of the reasonable inferences from the evidence of a decision, as they believe most conforms to the truth.” (Case no. 2:20-cv-07193, complaint at page 15.) The second count of the complaint also argues that section 6068(b) is vague.
Under the Younger doctrine (Younger v. Harris (1971) 401 US 37, 53-54), federal courts may not enjoin or otherwise interfere with pending state disciplinary proceedings on the ground that a federal constitutional claim is involved; if the claim can be raised in the state proceedings, federal courts must allow the state courts to adjudicate the federal constitutional claim. The State Bar Court is an administrative court, albeit a highly specialized one because it exists within the judicial branch. But because it functions as the administrative arm of the California Supreme Court (most State Bar Court decisions are couched as recommendations to the Supreme Court), the opportunity exists to raise such claims in a petition to the high Court. (Hirsh v. Justices of Supreme Court, et al. (9th Cir. 1995) 67 F3d 708, 713)i. Only “extraordinary circumstances” can make abstention inappropriate, for instance, where judges have an impermissible financial interest in the outcome. Mr. Hirsh unsuccessfully tried to argue “extraordinary circumstances “ existed in the that the fact that State Bar Court judges are paid by the State Bar, which recovers its costs when public discipline is imposed.
The California Supreme Court has decided that respondents in discipline proceeding no longer have a right to review by the Court (In Re Rose (200) 22 Cal.4th 430. 457 (J. Kennard, J. Brown dissenting). But it doesn’t matter; Hirsh held that the mere possibility of raising Constitutional claims on appeal was enough to satisfy the requirements of the Younger abstention.
So, it seems unlikely that the interesting issue of whether section 6068(b) is unconstitutionally vague will be addressed.
Stay tuned because this case will continue to make news.
- I was a defendant in Hirsh.