Bar’s Suspension of Lawyers Facing Discipline Upheld

The California Supreme Court, broadening the potential penalties for lawyer misconduct, Tuesday upheld the power of State Bar authorities to suspend an attorney from practicing law pending formal disciplinary action by the justices.

In a 5-2 decision, the court rejected contentions that the interim procedure violated the constitutional rights of accused attorneys and could effectively destroy their livelihoods while they awaited a final resolution of the charges against them.

Under the procedure, the Bar is empowered to order the “involuntary inactive enrollment” of attorneys facing disciplinary charges who are found to pose “a substantial threat of harm” to their clients or the public.

The interim proceedings were authorized by a law passed by the Legislature in 1985 in the wake of widespread criticism of slow responses by the Bar to complaints of lawyer misconduct.

Formal disciplinary proceedings can take from six months to three years to resolve. First, the Bar reviews charges, holds hearings and makes recommendations to the state Supreme Court; then the court decides whether to suspend or disbar an attorney for misconduct. Meanwhile, the accused attorney ordinarily may continue to practice law, raising the potential for further harm to clients or the public.

But under the interim procedure, the Bar can order expedited hearings that can result in suspension in as little as three weeks. Such a suspension can be challenged in court, but unless overturned it will remain in effect until the formal disciplinary process is completed.

The high court, in an opinion by Justice John A. Arguelles, found that the procedure was a legally valid means of protecting “the significant interest of the State Bar and the public in averting the threat of substantial harm” by attorneys accused of wrongdoing.

Arguelles’ opinion was joined by Chief Justice Malcolm M. Lucas and Justices Allen E. Broussard, Edward A. Panelli and David N. Eagleson.

In dissent, Justice Marcus M. Kaufman, joined by Justice Stanley Mosk, said the 1985 law violated the constitutional separation of powers by delegating to the Bar the authority to discipline lawyers that has been held exclusively by the judiciary.

Kaufman said further it was a denial of due process of law to bar a lawyer from practicing law for what could be an extended period of time pending the completion of formal disciplinary proceedings.

The court’s decision drew praise from Diane Yu, general counsel for the Bar, as a “very critical, very significant and very positive” development in the organization’s attempt to provide more effective discipline for lawyer misconduct.

Arthur L. Margolis of Los Angeles, representing the accused attorney in the case, expressed dismay with the ruling, and said he may take the issue to the federal courts, charging a violation of the right to due process.

“(The lawyer) already has been out of practice for over a year and it will be another year or more before the court acts in the formal disciplinary proceeding,” Margolis said.

According to the Bar, 12 attorneys were temporarily suspended in 1987 and 20 more were suspended in 1988 under the procedure approved by the justices. By contrast, the Bar in formal disciplinary proceedings in 1988 recommended the disbarment of 69 attorneys and the suspension of 133 lawyers. Another 65 attorneys resigned in 1988 while disciplinary charges were pending.

Suspension Upheld

In Tuesday’s action, the court majority upheld the interim suspension of Daniel James Conway, a Santa Monica attorney who was accused in January, 1988, of misconduct involving eight clients, including the unauthorized use of client funds for his own benefit and failing to perform necessary services for clients.

Conway said a severe addiction to cocaine had undermined his work as an attorney but contended that he posed no threat to clients or the public because he had since ceased using the drug.