In the Matter of Respondent R (1995)
Procedural Decision — No Discipline Imposed
This decision does not impose public discipline. It resolves a jurisdictional and procedural dispute concerning the scope and enforceability of an Agreement in Lieu of Discipline (ALD).
Overview
In the Matter of Respondent R is the leading Review Department authority on Agreements in Lieu of Discipline (ALDs). The court held that while a hearing judge has discretion to dismiss a disciplinary proceeding pursuant to an ALD, the judge may not impose binding conditions on reopening or relitigation of the matter unless those conditions were agreed to by both parties.
The decision is frequently cited for its discussion of ALDs as bargained-for agreements and for clarifying the limited role of the hearing judge in modifying or supplementing them.
Factual and Procedural Background
After the Office of the Chief Trial Counsel (OCTC) filed a disciplinary notice to show cause, the parties negotiated an Agreement in Lieu of Discipline pursuant to Business and Professions Code section 6092.5(i). Under the ALD, OCTC agreed to move to dismiss the disciplinary proceeding, subject to reopening if the respondent failed to comply with the agreement’s terms.
The hearing judge granted OCTC’s motion to dismiss, but added a condition to the dismissal order stating that OCTC could not reopen or relitigate the underlying disciplinary matter unless it first obtained a finding that the respondent had violated the ALD.
OCTC objected to this added condition and sought Review Department intervention, arguing that the hearing judge exceeded his authority by unilaterally imposing a restriction not contained in the ALD.
Legal Issues
- Whether the Review Department had jurisdiction to review a dismissal order entered at OCTC’s request;
- Whether a hearing judge may add binding conditions to an ALD not agreed to by both parties;
- The proper scope of judicial discretion in dismissals incident to ALDs.
Holdings
The Review Department held that:
- It had jurisdiction under the Transitional Rules of Procedure to review the challenged portion of the dismissal order;
- An ALD is a negotiated agreement between OCTC and the respondent;
- A hearing judge may not modify, supplement, or append binding conditions to an ALD without both parties’ consent;
- The added precondition on reopening constituted an abuse of discretion.
Disposition
The Review Department adopted the hearing judge’s dismissal order without prejudice, but struck the precondition restricting OCTC’s ability to reopen or relitigate the underlying disciplinary matter.
Practical Significance
- ALDs are treated as bargained-for agreements, not advisory recommendations.
- Hearing judges may approve or reject ALDs, but may not unilaterally rewrite them.
- OCTC retains statutory authority to reopen or file new proceedings consistent with governing rules.
- This case is routinely cited in disputes over ALD enforcement and dismissal orders.
Negotiating or Defending an Agreement in Lieu of Discipline?
ALDs can resolve disciplinary matters efficiently, but only if their terms are properly understood and enforced. If you are negotiating, defending, or disputing an ALD, contact East Bay Law P.C. for experienced California State Bar defense representation.