IN THE MATTER OF OzoWSKI (ReviewDept.2007) 5 Cal. StateBarCt.Rptr. 67

In re Ozowski — Review Department Lacks Jurisdiction Due to State Bar’s Procedural Errors in Seeking Review of Disciplinary Recommendation

State Bar Court, Review Dept. • September 20, 2007 • Judge Epstein, Judge Watai, Judge Stovitz • 5 Cal. State Bar Ct. Rptr. 67

The State Bar Court Review Department dismissed the State Bar’s appeal of a hearing judge’s recommendation for a public reproval in a disciplinary matter involving attorney Richard Martin Ozowski. The Review Department held that it lacked jurisdiction to consider the appeal because the State Bar failed to file a timely request for review due to procedural errors.

Facts

Richard Martin Ozowski, an attorney, had pled no contest to misdemeanor trespass following an incident at his former girlfriend’s residence, and his case was taken to a hearing judge. The hearing judge determined that the circumstances, while not involving moral turpitude, warranted discipline and recommended a public reproval with conditions. The State Bar requested review of this decision, and at the same time moved to amend the decision in the hearing department to protect the privacy of the victim and her family.

The hearing judge granted the motion to amend in part, directing that an amended decision with aliases be filed, and resetting the time for requesting review. The State Bar filed a second request for review. However, Ozowski filed a timely opposition to the motion to amend, and the hearing judge then issued a second order, declining to modify the decision and resetting the review period again. The State Bar did not file another request for review. The Court had found that the request was null and void due to failing other circumstances of the bar.

Procedural Posture

Ozowski initially received trial before a state court. However, the lack of the timely requests caused jurisdictional issues, which resulted in a dismissal of those requests and no trial taking action.

Issue(s)

Did the State Bar Court Review Department have jurisdiction to consider the State Bar’s appeal, given the series of procedural steps taken, including the motion to amend the decision in the hearing department and the subsequent resetting of the time for requesting review?

Holding

No. The Review Department held that it lacked jurisdiction to hear the appeal. The State Bar’s initial requests for review were vacated by its motion to amend, and it failed to file a new request for review after the hearing judge’s final ruling on the motion to amend.

Reasoning

The Review Department’s reasoning rested on the interpretation of several rules of the Rules of Procedure of the State Bar. This Department reasoned on:

Posttrial Motion Effect: The motion to amend was actually considered one of a posttrial motion, since he thought it was his own decision. The decision to request that came up with his post hearing which allowed it to come into the courts view

Lack of Timely Review Request: The fact that two appeals were put in means they’re not there.

Disposition & Sanction

The Review Department dismissed the State Bar’s appeal. As a result, the hearing judge’s initial recommendation of a public reproval with conditions was the final decision in the matter.

Practical Implications

Parties seeking review in State Bar Court proceedings must strictly adhere to the procedural rules and deadlines.
Filing a posttrial motion in the hearing department vacates any previously filed request for review.
The Review Department’s jurisdiction is dependent on a timely request for review filed after the final ruling on any posttrial motions.

Citations & Links

In the Matter of Ozowski, (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 67
Rules of Procedure of the State Bar, rule 221
Rules of Procedure of the State Bar, rule 301
California Penal Code section 602.5, subdivision (a)

State Bar Defense Attorneys