In the Matter of Lapin

Facts Leading to the Moral Character Proceeding

Sharon Lynn Lapin was an applicant for admission to the California State Bar whose application was denied certification by the Committee of Bar Examiners based on concerns regarding her moral character. Lapin exercised her statutory right to seek an independent adjudication in the State Bar Court and affirmatively waived confidentiality of the proceeding under Business and Professions Code section 6060.2.

During discovery, Lapin served interrogatories seeking the identities of individuals who had initiated complaints against her or provided adverse information to the State Bar during the moral character investigation. The Committee objected, asserting confidentiality under the Rules Regulating Admission to Practice Law, the constitutional right to privacy, attorney-client and work product privileges, and the official information privilege under Evidence Code section 1040.

Separately, serious discovery disputes arose regarding two nonparty witnesses, Edwin and Sandy Smith. Although the State Bar intended to rely on their testimony, it failed to subpoena them for deposition. The witnesses either failed to appear or terminated depositions prematurely, and the examiner later unilaterally abandoned efforts to secure depositions while still subpoenaing the witnesses for trial. Lapin sought to preclude their testimony entirely.

Charges / Issues Presented

• Whether the State Bar could refuse to disclose the identities of complainants and information-providers in a moral character proceeding.
• Whether the official information privilege (Evid. Code § 1040) or privacy rights barred such disclosure.
• Whether the State Bar could present testimony from nonparty witnesses whom it failed to properly produce for deposition.

Applicant’s Defenses and Arguments

Lapin argued that fundamental fairness and due process required disclosure of the identities of persons whose statements were being used against her, particularly where the State Bar reserved the right to call those individuals as rebuttal or impeachment witnesses. She emphasized that she could not meaningfully defend her moral character without knowing the source of the allegations.

Regarding the Smiths, Lapin contended that the State Bar’s failure to subpoena and produce its own witnesses for deposition—despite court orders—warranted exclusion of their testimony and any evidence derived from them.

State Bar’s Position

The State Bar asserted that confidentiality was essential to encourage candor from complainants and information providers and argued that disclosure would have a chilling effect on moral character investigations. It relied on Evidence Code section 1040, constitutional privacy principles, and internal admission rules to resist discovery.

As to the Smiths, the State Bar argued that logistical difficulties and lack of bad faith excused its failure to complete depositions and that exclusion of testimony would be an excessive sanction.

Court’s Ruling

The Review Department largely rejected the State Bar’s objections. It held that the rules governing bar admission and State Bar Court proceedings expressly authorize discovery, including interrogatories, in moral character cases. Confidentiality provisions governing admission records did not create a blanket privilege against discovery.

The court ruled that the identities of complainants and information-providers were not protected by the attorney-client privilege, work product doctrine, or the official information privilege where the State Bar intended to rely on those individuals as witnesses. Any privacy interest was outweighed by Lapin’s due process right to a fair hearing, particularly given the severity of the consequence—denial of the ability to practice law.

However, the court drew a distinction for individuals who had unequivocally refused to testify under any circumstances. As to those persons only, their identities could be withheld absent a stronger showing of necessity.

With respect to the Smiths, the Review Department found that the examiner’s conduct—while not in bad faith—fell well short of her obligations. It upheld and modified the trial judge’s order, permitting the State Bar to call the witnesses only if it first subpoenaed and produced them for deposition and either made them available locally or paid applicant’s counsel’s travel expenses.

Outcome

Key Takeaways

• Moral character applicants are entitled to robust discovery protections.
• The State Bar cannot rely on secrecy while reserving the right to call undisclosed witnesses.
• Discovery misconduct—even without bad faith—can result in severe evidentiary limitations.