In the Matter of Respondent D
(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 517

Overview

This decision concerns procedural due process in disciplinary prosecutions. The Review Department dismissed all charges against an unnamed attorney (“Respondent D”) after concluding that the notice to show cause failed to adequately inform him of the specific misconduct alleged. The case reaffirms that attorneys may only be disciplined for conduct properly charged and proven by clear and convincing evidence. The court also clarified that the statutory rule requiring service of documents on counsel does not apply to the service of writs, and that civil sanctions orders cannot substitute for proof of bad faith in disciplinary proceedings.

Facts of the Case

Respondent represented two individual defendants and their corporation in a business dispute involving the sale of coin-operated air machines to a plaintiff, “Mike W.” After settlement negotiations, the parties executed documents resolving the case for $1,100 against the corporation only. Shortly thereafter, the plaintiff asked that the dismissal documents not be filed until payment was received. Despite this, Respondent informed the plaintiff that the documents had already been mailed to the court, and the dismissals were entered.

Plaintiff’s counsel moved to set aside the dismissals on grounds of fraud and mistake, and the municipal court granted the motion while imposing $700 sanctions on Respondent under Code of Civil Procedure section 128.5. Respondent appealed and was sanctioned again when the court deemed the appeal “frivolous.” He then filed a writ of mandate seeking to overturn the sanction order and served the writ on the plaintiff personally, but not on the plaintiff’s attorney. The hearing panel later found he acted “in bad faith and with intent to deceive,” asserting that he knew or should have known that proper service had not been made.

Procedural History

The State Bar charged Respondent with (1) misrepresentation in obtaining the settlement, and (2) “pursuing appeals in bad faith.” At hearing, the misrepresentation count was dismissed for lack of clear and convincing proof, but the panel found him culpable under sections 6068(a), 6103, and 6128(a) for deceit relating to the writ service and recommended a public reproval.

Respondent petitioned for review, arguing that he was never notified that his conduct in the writ proceeding was at issue. The Review Department agreed, holding that a charge of “pursuing appeals in bad faith” did not encompass alleged misconduct in the separate writ matter, and that due process barred discipline on uncharged grounds.

Legal Analysis

The Review Department, per Judge Norian (joined by Presiding Judge Pearlman and Judge Stovitz), framed the case around the fundamental rule of notice in disciplinary proceedings. Citing Edwards v. State Bar (1990) 52 Cal.3d 28 and Arm v. State Bar (1990) 50 Cal.3d 763, the court reaffirmed that an attorney can only be disciplined for conduct specifically charged in the notice to show cause or in an authorized amendment. Any variation that materially alters the nature of the charge violates due process.

The Department found that “pursuing appeals in bad faith” was not reasonably notice of misconduct in a separate writ proceeding. The writ and appeal were different actions, filed in different courts, seeking distinct remedies. Because the notice did not reference the writ, Respondent had no fair opportunity to defend against those allegations. The opinion emphasized that even a short pleading must contain enough particularity to frame the issues and allow an adequate defense.

Additional Findings

The court also ruled that the record failed to clearly and convincingly establish that Respondent’s appeal was frivolous. The municipal court’s sanctions order gave no explanation or statutory authority, and no additional evidence showed that the appeal lacked merit. Under Maltaman v. State Bar (1987) 43 Cal.3d 924, disciplinary findings must be supported by independent evidence meeting the “clear and convincing” standard. Civil sanctions orders do not automatically establish culpability.

Finally, the Department adopted the hearing panel’s dismissal of the misrepresentation count, finding that conflicting testimony had been resolved on credibility grounds in Respondent’s favor.

Holding and Disposition

The Review Department dismissed the proceeding in its entirety. It cautioned that while Respondent’s conduct—failing to notify opposing counsel of the writ—was “not a model of good practice,” it was not a disciplinary offense because it had not been charged. The opinion underscores the court’s commitment to procedural fairness in State Bar prosecutions.

Sanctions Table