In the Matter of Respondent EE

Review Department (2024) 6 Cal. State Bar Ct. Rptr. 127

Overview

This case addresses whether a State Bar public reproval based solely on a criminal conviction must be vacated when that conviction is later dismissed under Penal Code §§ 1385 and 1473.7, and whether the entire disciplinary record may then be sealed.

The Review Department affirmed the hearing judge’s decision to:

• Vacate a 2019 public reproval,
• Dismiss the disciplinary proceeding without prejudice, and
• Seal the record based on respondent’s constitutional privacy interests.

Original Charges and Discipline

Criminal Conviction

In 2018, respondent pleaded nolo contendere to misdemeanor eavesdropping under Penal Code § 632(a). The conviction stemmed from recording three conversations with his spouse inside their home without her consent.

All other charges were dismissed. He received informal probation.

Conviction Referral Proceeding

Under Business & Professions Code § 6101(a), OCTC transmitted the conviction record to the State Bar Court.

In 2019, based on a stipulation, a hearing judge imposed a public reproval. The conviction did not involve moral turpitude, but constituted “other misconduct warranting discipline.”

Post-Discipline Developments

Respondent later obtained extraordinary post-conviction relief:

• Dismissal under Penal Code § 1203.4 (expungement)
• Later vacatur and dismissal under Penal Code §§ 1385 and 1473.7
• A finding of factual innocence

Unlike §1203.4 relief, dismissal under §1385 wipes the slate clean — as if the conviction never occurred.

Respondent’s Motion

Respondent filed a Motion to Vacate, Dismiss, and Seal. He argued:

• The conviction referral proceeding lacked a jurisdictional basis once the conviction was vacated.
• Section 6101 requires an existing conviction.
• Maintaining public discipline based on a void conviction violates due process and privacy rights.

OCTC’s Opposition

OCTC raised several arguments:

• The State Bar Court lacked jurisdiction after Supreme Court review was denied.
• The motion constituted an improper collateral attack.
• The Supreme Court’s summary denial was law of the case.
• Attorney discipline is based on conduct, not the conviction itself.
• Sealing violated transparency principles and Rule 5.127(B).

Judicial Reasoning

1. Jurisdiction Was Retained

The Review Department held that reprovals remain under State Bar Court jurisdiction unless transmitted to the Supreme Court under § 6081 (which applies only to suspension/disbarment).

Because this was a reproval issued under State Bar authority, the court retained power to vacate or modify it.

2. No Law-of-the-Case Bar

The Supreme Court’s summary denial addressed only issues raised in the petition. The Penal Code §§ 1385 and 1473.7 dismissal occurred afterward and was never considered by the State Bar Court in prior proceedings.

Thus, the denial did not preclude reconsideration.

3. Effect of Penal Code § 1385 Dismissal

Relying on People v. Barro, the court explained that §1385 dismissal “wipes the slate clean.”

Unlike §1203.4 expungement, §1385 vacatur eliminates the conviction entirely.

Because §6101(a) requires an existing conviction as the sole basis for a conviction referral proceeding, the disciplinary authority evaporated once the conviction was voided.

4. Sealing Under Rule 5.12

The hearing judge properly applied Rule 5.12(B), finding respondent’s constitutional privacy interests outweighed the public’s interest in accessing a dismissed disciplinary record.

The court analogized to cases protecting privacy where arrests did not result in conviction.

Holding

Sanctions Table

Key Legal Principles

• Conviction referral proceedings require a valid, existing conviction.
• Section 1385 dismissal is materially different from §1203.4 expungement.
• Reprovals remain under State Bar Court jurisdiction.
• Privacy interests may outweigh public access after dismissal.
• Summary denial by the Supreme Court does not bar later reconsideration of new legal developments.