In the Matter of Respondent B
(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 424

Overview

This confidential proceeding involved the involuntary inactive enrollment of an unnamed attorney (“Respondent B”) under Business and Professions Code §6007(b)(3), based on alleged mental infirmity or illness. The hearing judge ordered a compulsory psychiatric evaluation under §6053 after determining probable cause of mental incompetence. When the respondent refused to submit to the examination, the judge applied Rule 644 of the Transitional Rules of Procedure to presume the existence of facts warranting transfer to inactive status. The Review Department reversed, holding that the hearing judge’s order violated constitutional privacy protections and lacked good cause.

Factual Background

The State Bar initiated the proceeding in 1988 after several investigation matters raised concerns about the respondent’s mental condition. The Office of Trial Counsel applied for a mental examination under §6053, claiming the respondent’s mental health impaired his ability to defend against disciplinary charges. The hearing referee granted the application and ordered the respondent to undergo psychiatric evaluation. When the respondent refused, citing privacy and constitutional objections, the examiner urged the court to presume mental incapacity under Rule 644.

The respondent, represented by appointed counsel, argued that the mental examination order violated the California Constitution, Article I, Section 1, which guarantees privacy rights. Counsel contended that §6053 was unconstitutional as applied, and that the order lacked a finding of good cause or consideration of less intrusive alternatives. The hearing judge nevertheless upheld the order, reasoning that a compelling interest existed in determining the respondent’s fitness to practice.

Issues and Holdings

On review, Presiding Judge Pearlman and Judges Norian and Stovitz analyzed the due process and privacy implications of compulsory psychiatric examinations in State Bar proceedings. The Review Department held:

• The standard of proof in §6007(b)(3) involuntary inactive proceedings is clear and convincing evidence.
• A mental examination implicates a profound constitutional privacy interest, described as a “quintessential zone of human privacy.”
• Under §6053, the State Bar must demonstrate both good cause and that the examination is the least intrusive means of determining mental condition.
• The “probable cause” finding that triggers a §6007(b)(3) proceeding does not suffice to justify a compelled psychiatric examination.
• Rule 644, which allows a presumption based on failure to undergo an examination, must be construed as permitting only a permissive inference, not a burden-shifting presumption.

Because neither the examiner nor the hearing judge showed that a mental examination was the least intrusive means of determining mental capacity, nor established good cause under Code of Civil Procedure §2032(d), the Review Department found the order invalid and reversed the inactive enrollment. The case was remanded for further proceedings consistent with due process and privacy protections.

Legal Analysis

The Review Department reaffirmed that the State Bar’s authority to order psychiatric examinations must yield to constitutional privacy rights. Drawing upon Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937 and Edwards v. Superior Court (1976) 16 Cal.3d 905, the court recognized that compulsory mental examinations are “far more intrusive” than other forms of discovery and thus require the highest scrutiny.

The court emphasized that §6053 serves a compelling state interest—protecting the public, courts, and the profession from mentally incompetent attorneys—but can be constitutionally applied only if the examination is necessary and narrowly tailored. The confidentiality of proceedings and limited dissemination of psychiatric reports were cited as additional safeguards preserving attorney privacy.

Importantly, the court noted that mental incompetency can be proven without psychiatric examination. Testimony from witnesses, pleadings evidencing erratic behavior, or expert psychiatric opinions based on documentary evidence may suffice. Only where such evidence proves inadequate may the court consider ordering a compulsory exam as the least intrusive option.

Rule 644 Interpretation

Rule 644 allows an inference of mental infirmity when a respondent refuses, without good cause, to submit to an ordered mental examination. The Review Department ruled that this inference cannot relieve the examiner of the burden of proving incompetence by clear and convincing evidence. Construing the rule otherwise would contradict the presumption of mental competence inherent in an attorney’s license to practice law and would effectively impose a default judgment contrary to Rule 321 of the Transitional Rules.

Outcome

The Review Department reversed the hearing judge’s decision and remanded the case, instructing that future proceedings comply with the requirements of good cause, least intrusive means, and clear and convincing evidence. It reaffirmed that Rule 644 creates only a permissive inference of incapacity, preserving due process and the presumption of competence.

Sanctions Table