In the Matter of Henry L. Glasser (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 163

Court: State Bar Court of California, Review Department | Date: September 11, 1990 | Panel: Pearlman, P.J.; Norian, J.; Stovitz, J. concurring.

Charges Brought Against Respondent

Attorney Henry L. Glasser was charged with serious misconduct related to his service as trustee for multiple client family trusts. The State Bar alleged that between 1982 and 1989, Glasser made a series of loans totaling over $2 million from twelve client trusts to limited partnerships in which he was a general partner. The Notice to Show Cause (NTSC) alleged violations of Business and Professions Code §§ 6068(a), 6103, and 6106, and former Rules 5-101, 6-101(A)(2), 8-101(B)(3), and 8-101(B)(4) of the Rules of Professional Conduct. Glasser moved to dismiss the NTSC, arguing it was impermissibly vague and deprived him of due process.

Procedural Background

Hearing Judge Jennifer Gee dismissed the NTSC without prejudice, finding it failed to give adequate notice of any specific misconduct. The State Bar sought review. The Review Department affirmed, emphasizing that due process requires attorneys be clearly informed of the charges against them, including which acts allegedly violated which rules or statutes. The NTSC, less than two pages long, referred broadly to a series of loans from unidentified trusts to unidentified partnerships, without specifying dates, amounts, lenders, borrowers, or which transactions were deemed improper.

Key Legal Findings

• Due Process Requires Specific Notice: The Review Department held that the NTSC must relate individual facts to specific statutory and rule violations to allow meaningful defense and review.
• Inadequate Pleading: The NTSC’s general references to “loans” and “misappropriation” failed to identify any particular conduct constituting a violation. No loan was tied to a specific client or trust, and the notice did not specify which rules were implicated by which conduct.
• No Allegation of Key Elements: For violations of former Rule 8-101(B)(4), the NTSC failed to allege client ownership of funds, entitlement to repayment, or a demand for payment—all required elements. Similarly, the pleading under former Rule 6-101(A)(2) lacked any allegation of intentional or repeated failure to perform services competently.
• General Catch-All Paragraph Insufficient: The NTSC’s final paragraph—which merely listed various code sections and rules—did not cure the defects because it failed to connect the facts to any specific violation.

Holding and Reasoning

The Review Department, adopting Judge Gee’s ruling, held that the NTSC was so vague it failed to provide sufficient notice of the charges. It explained that the right to practice law is “sufficiently precious” to warrant the same procedural safeguards as civil or criminal cases. Adequate notice is an essential element of due process, ensuring respondents have a fair opportunity to prepare and present a defense. The court emphasized that the State Bar must determine the specific conduct at issue and clearly articulate it in the NTSC, correlating each alleged act with the rule or statute it purportedly violates.

Guidance for Future Proceedings

The decision establishes important precedent for disciplinary pleading sufficiency. The State Bar cannot file vague “catch-all” notices or rely on discovery to clarify charges. It must plead with enough particularity for the attorney to understand which transactions, dates, and conduct are alleged to be improper. Informal sharing of evidence (like the 200-page internal report on Glasser’s trustee activities) cannot substitute for formal notice. Furthermore, if new evidence reveals additional violations, the NTSC must be amended—not retroactively interpreted to include uncharged conduct.

Outcome

The motion to dismiss was affirmed. The Review Department concluded that the NTSC failed to allege a disciplinable offense as a matter of law. The State Bar was instructed that any refiling must specifically identify the loans, the trusts and partnerships involved, the nature of each alleged violation, and how each action breached a rule or statute. The opinion reaffirms that due process protections apply fully in attorney discipline proceedings, requiring clarity, specificity, and fairness in all pleadings.

Sanctions Table