In the Matter of Respondent L

Facts

Respondent L was admitted to the California State Bar in 1979. In October 1991, the Office of Trials filed a ten-count Notice to Show Cause alleging serious misconduct occurring between 1988 and 1990. The charges included misappropriation of more than $50,000 in client funds, unauthorized settlements, misleading clients about case status, issuing checks with insufficient funds, failing to communicate with clients, and failing to cooperate with the State Bar’s investigation.

Respondent retained counsel and actively participated in prehearing proceedings. In February 1992, respondent’s counsel submitted a declaration stating that respondent—despite physical and psychological difficulties—had been performing high-quality paralegal work, demonstrating strong focus, attention to detail, and awareness of deadlines.

Shortly before trial, however, respondent’s counsel moved to place respondent on inactive status, asserting that respondent was unable to assist in his own defense due to mental illness. The motion was supported by a declaration from counsel and a brief letter from a psychiatrist who had examined respondent once. The Office of Trials did not oppose inactive enrollment but opposed abatement of the disciplinary proceeding.

The hearing judge ordered respondent involuntarily enrolled inactive under Business and Professions Code § 6007(b)(1) and, without conducting an evidentiary hearing or resolving conflicting evidence, also abated the disciplinary proceeding. The Office of Trials sought review.

Charges / Issues Considered

• Whether inactive enrollment under § 6007(b)(1) requires proof beyond an asserted claim
• Whether abatement of a disciplinary proceeding automatically follows inactive enrollment
• What standard of proof applies to abatement based on mental incompetence

Defenses

Respondent asserted that he was mentally incompetent to assist counsel in his defense. He relied on counsel’s declaration and a psychiatrist’s letter concluding that respondent suffered from severe depression impairing his ability to engage in legal proceedings.

Respondent did not file a brief on review, did not appear at oral argument, and offered no additional evidence to reconcile the inconsistency between counsel’s earlier declaration praising respondent’s cognitive functioning and the later claim of incompetence.

Court’s Ruling

The Review Department held that inactive enrollment under § 6007(b)(1) is mandatory once an attorney asserts, in any pending proceeding, an inability to understand the proceeding or assist counsel. No additional evidentiary showing is required, and the State Bar Court has no discretion to deny inactive enrollment once the statutory claim is made.

However, the court emphasized that abatement of a disciplinary proceeding is a separate determination governed by § 6007(f). Abatement is not automatic and requires proof by a preponderance of the evidence that the attorney is actually incompetent to assist in the defense.

Applying principles drawn from criminal competency law and prior discipline cases, the Review Department concluded that the hearing judge abused her discretion by abating the disciplinary proceeding without holding a hearing, resolving conflicting evidence, or applying the correct standard. The psychiatrist’s letter was conclusory and lacked critical details, and counsel’s assertion of incompetence was undermined by his earlier declaration attesting to respondent’s strong mental functioning.

The matter was remanded solely for further proceedings on the issue of abatement, including an evidentiary hearing and explicit findings under the preponderance-of-the-evidence standard.

Disposition

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