In the Matter of Sheppard (Review Dept. 1999)
In the Matter of Sheppard (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 91
The Review Department held that passage of the Professional Responsibility Examination (PRE) is not a condition precedent to filing a petition for reinstatement, but is instead a condition precedent to a recommendation of reinstatement.
Facts
Robert A. Sheppard resigned from the California State Bar in 1993. His resignation was formally titled a “resignation with charges pending,” and was accepted by the California Supreme Court without prejudice to further disciplinary proceedings.
Several years later, Sheppard filed a petition for reinstatement. The State Bar moved to dismiss the petition on the sole ground that Sheppard failed to prove he had passed the Professional Responsibility Examination (PRE) within one year prior to filing his petition.
The hearing judge denied the State Bar’s motion, concluding that PRE passage was not required prior to filing a reinstatement petition and further determining that Sheppard had not resigned with charges pending.
The State Bar sought interlocutory review, arguing both that disciplinary charges were pending at the time of resignation and that PRE passage was a prerequisite to filing a reinstatement petition.
Issues on Review
- Whether disciplinary charges were pending when Sheppard resigned
- Whether passing the PRE is a prerequisite to filing a reinstatement petition
- Interpretation of State Bar Rule of Procedure 665(a)
Court’s Analysis
The Review Department first determined that Sheppard did resign with charges pending. His resignation document explicitly stated charges were pending, and his own petition admitted he was under investigation at the time of resignation.
The court then addressed the central legal question — whether PRE passage must occur before a reinstatement petition may be filed. Interpreting Rule 665(a) using statutory construction principles, the court concluded the rule establishes only eligibility for reinstatement, not eligibility to file a petition.
The court emphasized that California Rules of Court governing reinstatement require PRE passage before reinstatement may be recommended, but do not require proof of passage before filing a petition.
The court reasoned that requiring PRE passage prior to filing would impose unnecessary procedural barriers inconsistent with the rehabilitative purpose of attorney discipline.
Instead, a petitioner may file first and pass the PRE during the reinstatement process. However, failure to pass the exam by the time of hearing will result in denial of reinstatement.
Key Legal Holdings
- PRE passage is required for reinstatement eligibility
- PRE passage is NOT required to file a reinstatement petition
- Charges are “pending” when an attorney is under investigation
- Rules of Procedure must be interpreted consistently with Supreme Court rules
Rule Interpretation Table
| Rule | Issue | Court Holding | Practical Impact |
|---|---|---|---|
| Rule 665(a) | PRE timing | Not required before filing | Petitions may be filed first |
| Rule 951(f) | Reinstatement requirements | PRE required before reinstatement | Condition of eligibility |
| Rule 650 | Charges pending definition | Includes investigations | Broader than formal charges |
Outcome
The Review Department affirmed denial of the State Bar’s motion to dismiss. It held that although the hearing judge erred in finding no charges were pending, the judge correctly ruled that PRE passage is not a condition precedent to filing a reinstatement petition.