JACOBS v. STATE BAR

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Court of Appeal, First District, Division 2, California.

Allen JACOBS, Plaintiff and Appellant, v. The STATE BAR of California, Defendant and Respondent.

Civ. 38476.

Decided: March 10, 1977

Olsen & Sorrentino, Gary K. Olsen, Christopher M. Gilman, Los Angeles, for plaintiff-appellant. Herbert M. Rosenthal, Stuart A. Forsyth, Ronald W. Stovitz, San Francisco, for defendant-respondent.

Plaintiff and appellant Allen Jacobs appeals from the order of the San Francisco Superior Court denying his application for a preliminary injunction.1

ISSUES PRESENTED

1) The superior court had jurisdiction to consider appellant's application for a preliminary injunction.

2) The superior court did not abuse its discretion in denying the preliminary injunction.

RECORD

Appellant filed a complaint, an affidavit and points and authorities in support of the issuance of a temporary restraining order and preliminary injunction. It is alleged in the complaint that the actions of defendant and respondent State Bar of California (hereinafter State Bar) in investigating appellant's transactions with various clients constituted an abuse of process and an invasion of appellant's privacy. Appellant asked that the State Bar be enjoined from investigating into appellant's private affairs absent a showing of probable cause demonstrating that such disclosure is relevant to an investigation properly being conducted by the State Bar, and that the State Bar be enjoined from contacting appellant's former or present clients ‘unless such clients take the initiative in voluntarily proffering such information’ to the State Bar; and for damages in the sum of $10,000.

Thereafter an order to show cause re preliminary injunction and temporary restraining order was issued. The State Bar filed a written return in opposition to the order to show cause. The matter was heard before the Honorable Jay Pfotenhauer who thereafter issued an order denying appellant's application for a temporary restraining order and a preliminary injunction. Appellant filed a timely notice of appeal from the order denying a preliminary injunction.

STATEMENT OF FACTS

Appellant is an attorney duly admitted and licensed to practice law in this state. Pursuant to express statutory authority (Bus. & Prof.Code, §§ 6040–6053 and 6075–6087) and in its capacity as the administrative arm of the California Supreme Court (Emslie v. State Bar (1974) 11 Cal.3d 210, 224, 113 Cal.Rptr. 175, 520 P.2d 991), the State Bar is conducting a preliminary investigation (Rules of Procedure of the State Bar of California, rules 21–24(a)) into alleged professional misconduct of appellant in his capacity as attorney at law for the purpose of ascertaining whether probable cause exists for the issuance of formal disciplinary charges against appellant. During the course of this investigation, the State Bar of California Administrative Committee for State Bar District 4 (hereinafter local administrative committee) issued a subpoena duces tecum addressed to Michel Nolden. Attached to the subpoena was a declaration under penalty of perjury by State Bar Staff Attorney John R. Jones to the effect ‘2) There is presently pending before this Committee a matter involving alleged professional misconduct on the part of attorneys in their relations and dealings with Dr. John Winston, Jr. [¶]3) I am informed and believe and thereupon allege that Michel Nolden has in his possession or control files, documents and papers relating to said relations and dealings with Dr. John Winston, Jr., and said attorneys which are relevant and material to the hearing in this matter.’

The subpoena required Nolden to attend and appear before the local administrative committee at a time and place therein designated and to bring with him ‘[a]ny and all files, documents and papers in your possession or under your control belonging to Dr. John Winston, Jr., which contain billings to one or more of the follwing attorneys: . . .’ Here are listed appellant and 29 other names.

1) The superior court had jurisdiction to consider appellant's application for a preliminary injunction.

The State Bar contends that the superior court did not have jurisdiction to review the propriety of the issuance of the subpoena by the local administrative committee. It bases this contention principally on section 6082 of the Business and Professions Code which provides: ‘Any person complained against and any person whose reinstatement the board may refuse to recommend may have the action of the board, or of any committee authorized by it to make a determination on its behalf, pursuant to the provisions of this chapter, reviewed by the Supreme Court in accordance with the procedure prescribed by the court,’ and on rule 952 of the California Rules of Court which provides for petition to the Supreme Court to review a decision of the State Bar recommending disbarment or suspension from practice of a member of the State Bar, or to review the recommendation of the State Bar to set aside a stay of a suspension and that the recommended discipline be imposed by the court, or to review any other action of the board of governors, or of any board or committee appointed by it and authorized to make a determination pursuant to the provisions of the State Bar Act.

Appellant on the other hand argues that sections 6050 and 6051 of the Business and Professions Code give the superior court jurisdiction to review the propriety of a subpoena issued by the Board of Governors of the State Bar or by a local administrative committee. Sections 6050 and 6051 are part of chapter 4 of the code headed ‘Attorneys' and known as the State Bar Act. (Bus. & Prof. Code, § 6000.) Section 6050 provides: ‘Whenever any person subpoenaed to appear and give testimony or to produce books, papers or documents refuses to appear or testify before the board or a committee, or to answer any pertinent or proper questions, or to produce such books, papers or documents, he is in contempt of the board or the committee.’

Section 6051 provides in pertinent part: ‘The chairman or presiding officer of the board or the committee having jurisdiction shall report the fact that a person under subpoena is in contempt of the board or committee to the superior court in and for the county in which the proceeding, investigation or other matter is being conducted and thereupon the court may issue an attachment in the form usual in the superior court, directed to the sheriff of the county, commanding the sheriff to attach such person and forthwith bring him before the court.

‘On the return of the attachment, and the production of the person attached, the superior court has jurisdiction of the matter . . . and the same proceedings shall be had, and the same penalties may be imposed, and the same punishment inflicted, as in the case of a witness subpoenaed to appear and give evidence on the trial of a civil cause before a superior court.

‘In lieu of the procedure hereinabove provided, the court may enter an order directing the person alleged to be in contempt to appear before the court at a specified time and place and then and there show cause why he has not attended or testified or produced the writings as required. . . . If it appears to the court that the subpoena was regularly issued and no good cause is shown for the refusal to appear or testify or produce the writings, the court shall enter an order that the person appear, testify, or produce writings, as the case may be. Upon failure to obey the order, the person shall be dealt with as for contempt of court.’ (Emphasis added.)

The State Bar argues that section 6051 merely provides a means whereby the State Bar can obtain the assistance of a superior court to enforce a State Bar subpoena. However, a careful examination of section 6051 reveals that the superior court does not merely enforce a State Bar subpoena. The third paragraph of section 6051 provides a procedure whereby the superior court determines if the subpoena was regularly issued and determines if there is good cause shown for the refusal to appear or testify or produce the writings. In following this procedure the superior court must review the propriety of a subpoena issued by the State Bar or a local administrative committee. To hold otherwise would mean that the Supreme Court would have the burdensome task of reviewing whether or not valid proceedings have been brought to have a certain person testify and/or bring with him the requested documents in each disciplinary action commenced by the State Bar. However, the Supreme Court retains its inherent power to control a disciplinary procedure at any stop. (Emslie v. State Bar, supra, 11 Cal.3d 210, 224–225, 113 Cal.Rptr. 175, 520 P.2d 991.) This method whereby the superior court determines the propriety of a subpoena issued by the State bar ‘is ‘alternative and cumulative’ to the inherent power of [the Supreme Court] in such matters.' (Id. at p. 224, 113 Cal.Rptr. at p. 183, 520 P.2d p. 999.)

The cases cited by the State Bar do not compel a different conclusion. The cases cited by the State Bar do not concern the construction of section 6050 and 6051 of the Business and Professions Code. In re Weymann (1928) 92 Cal.App. 646, 268 P. 971 held that the adoption of the State Bar Act in 1927 replaced the jurisdiction to admit to the practice of law from the district courts of appeal to Supreme Court. In re Cate (1929) 207 Cal. 443, 279 P. 131 held that the passage of the State Bar Act was not retroactive in effect and did not divest of jurisdiction the district court of appeal of applications for readmission to practice of those members of the legal profession which were under consideration at the time the State Bar Act took effect. Johnson v. State Bar (1935) 4 Cal.2d 744, 52 P.2d 928 upheld the jurisdiction of the Supreme Court to review recommendations of the State Bar to suspend an attorney from the practice of law against an attack on the constitutionality of the State Bar Act.

2) The superior court did not abuse its discretion in denying the injunction.

Appellant argues that the superior court abused its discretion in denying a preliminary injunction. The thrust of appellant's contention is that the investigation by the State Bar is a violation of his right to privacy and a violation of his right to be free from unreasonable searches and seizures.

The State Bar is a public corporation created by the Legislature as an administrative arm of the Supreme Court for the purpose of assisting in matters of admission and discipline of attorneys. (Emslie v. State Bar, supra, 11 Cal.3d 210, 224, 113 Cal.Rptr. 175, 520 P.2d 991.) Proceedings before the State Bar are neither civil nor criminal but are sui generis. (Yokozeki v. State Bar (1974) 11 Cal.3d 436, 447, 113 Cal.Rptr. 602, 521 P.2d 858, cert. den. 419 U.S. 900, 95 S.Ct. 183, 42 L.Ed.2d 145; Brotsky v. State Bar (1962) 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 368 P.2d 697.) ‘[T]he purpose of a disciplinary proceeding is not punitive but to inquire into the fitness of the attorney to continue in that capacity to the end that the public, the courts and the legal profession itself will be protected.’ (In re Kreamer (1975) 14 Cal.3d 524, 532, 121 Cal.Rptr. 600, 605, 535 P.2d 728, 733; see also Sullins v. State Bar (1975) 15 Cal.3d 609, 619, 125 Cal.Rptr. 471, 542 P.2d 631; Emsline v. State Bar, supra, 11 Cal.3d at p. 225, 113 Cal.Rptr. 175, 520 P.2d 991.)

Given the fact that disciplinary actions are not punitive, the ordinary criminal procedural safeguards do not apply. (Yokozeki v. State Bar, supra, 11 Cal.3d 436, 447, 113 Cal.Rptr. 602, 521 P.2d 858; Lewis v. State Bar (1973) 9 Cal.3d 704, 713–714, 108 Cal.Rptr. 821, 511 P.2d 1173; Bernstein v. State Bar (1972) 6 Cal.3d 909, 916, 101 Cal.Rptr. 369, 495 P.2d 1289; Eschwig v. State Bar (1969) 1 Cal.3d 8, 18, 81 Cal.Rptr. 352, 459 P.2d 904; Best v. State Bar (1962) 57 Cal.2d 633, 637, 21 Cal.Rptr. 589, 371 P.2d 325.) In Lewis v. State Bar, supra, 9 Cal.3d at pages 713–714, 108 Cal.Rptr. 821, 511 P.2d 1173, the petitioner argued that the disciplinary proceedings were instituted after an unreasonable lapse of time and therefore he had been denied due process of law. The court in Lewis rejcted petitioner's contention and stated, ‘this proceeding is not a criminal proceeding and the procedures governing criminal proceedings are inapplicable, . . .’ (Id. at pp. 713–714, 108 Cal.Rptr. at p. 827, 511 P.2d at p. 1179.) In Bernstein v. State Bar, supra, petitioner claimed on ‘appeal’ from the local committee's judgment the Disciplinary Board of the State Bar may not impose a greater penalty than that imposed by the local administrative committee. The court in rejecting this argument stated: ‘This proceeding does not constitute a criminal one; it proposes, instead, to determine the fitness of an attorney to practice law [citations]; petitioner's reference to cases construing rights in criminal appeals do not apply.’ (Id. 6 Cal.3d at p. 916, 101 Cal.Rptr. at p. 372, 495 P.2d at p. 1292.)

In Emslie v. State Bar, supra, 11 Cal.3d 210, 226, 113 Cal.Rptr. 175, 183, 520 P.2d 991, 999, the court noted: ‘The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection.’ The court continued: ‘The question whether a particular rule of the civil or criminal law, not otherwise provided for by statute or categorically established by case law, should be applied in State Bar disciplinary matters to assure administrative due process, must be determined upon the facts presented in a particular case.’ (Id. at p. 226, 113 Cal.Rptr. at p. 184, 520 P.2d at p. 1000.) In Emslie the petitioner argued that evidence was seized in violation of his Fourth Amendment rights and could not be considered in the disciplinary action. Although the Supreme Court felt the evidence was properly obtained, it stated that even if it had been obtained in violation of the petitioner's Fourth Amendment rights, it was admissible in the disciplinary proceeding. The court pointed out that the exclusionary rule was adopted in the hope that it would have a deterrent effect upon unconstitutional activity by law enforcement officers. (Id. at p. 227, 113 Cal.Rptr. 175, 520 P.2d 991.) The court therefore reasoned that the exclusionary rule should not apply in the fact situation presented in Emslie because in ‘applying the exclusionary rules to attorney disciplinary proceedings we find practically no deterrent effect upon any law enforcement officer who might be tempted to use unconstitutional methods to obtain evidence for use in a criminal trial.’ (Emphasis added.) (Id. at p. 229, 113 Cal.Rptr. at p. 186, 520 P.2d at p. 1002.)

Since in the instant case appellant is alleging that the evidence was unlawfully seized by the State Bar or the local administrative committee, it is possible that the exclusionary rule might be said to have some deterrent effect. That is, in Emslie, the court noted that a law officer who obtained evidence in an unlawful search or seizure to be used in a criminal trial may not even know that the suspect was an attorney and might not even contemplate the consequences of an arrest or conviction upon professional disciplinary proceedings. (Id. at p. 229, 113 Cal.Rptr. 175, 520 P.2d 991.) But in the instant case obviously the State Bar knows the consequences to an attorney from information obtained regarding his professional ability whether obtained during reasonable or unreasonable searches and seizures.

Under the reasoning in People v. Warburton (1970) 7 Cal.App.3d 815, 824, 86 Cal.Rptr. 894, it may well be that appellant has no standing to assert that the service of the subpoena duces tecum constitutes an illegal search of the person subpoenaed. The court in Warburton stated that if the custodian of the records chose to ignore the defects in the subpoena, one could not assert that the custodian's Fourth Amendment rights had been violated. The court contrated its holding with People v. Martin (1955) 45 Cal.2d 755, 761, 290 P.2d 855. In Martin, officers entered an office building where they seized bookmaking paraphernalia. Although the defendant in Martin had no interest in the office, he was allowed to raise the validity of the search. In distinguishing Martin, the court in Warburton stated: ‘When police unjustifiably enter an office and seize papers, privacy is irrevocably destroyed. But the issuance and service of a subpena do not, by themselves, invade the private papers of anyone.’ (7 Cal.App. at p. 824, 86 Cal.Rptr. at p. 899.) The court in Warburton stated that the purpose of the exclusionary rule is to discourage unlawful police conduct and concluded that the purpose is inapplicable where the custodian of the records has not had his Fourth Amendment rights violated. The reasoning in Warburton might not be applicable to the instant case because as noted above the exclusionary rule could be said to have some deterrent effect. Therefore, it is necessary to look further at appellant's contention.

An attorney at law in accepting his license to practice gives up some of his rights as a private citizen. For example, ‘It has frequently been held that a member of the profession may be called upon to testify, even though such testimony may establish his violation of his oath of office and his duty as an attorney at law.’ (Johnson v. State Bar, supra, 4 Cal.2d 744, 752, 52 P.2d 928, 931.) Thus, it is inherent in his acceptance of his right to practice law that when charges are made against him that he must submit to having those charges investigated even if to some extent what would be a right to privacy in one not an attorney is violated.

Appellant contends that the investigation by the State Bar is an invasion of his right to privacy.2 ‘A constitutional amendment adopted in 1974 elevated the right of privacy to an ‘inalienable right’ expressly protected by force of constitutional mandate. (Cal.Const., art. I, § 1.)' (Valley Bank of Nevada v. Superior Court, supra, at p. 656, 125 Cal.Rptr. at p. 555, 542 P.2d at p. 979.) The court in Valley Bank noted, ‘Although the amendment is new and its scope as yet is neither carefully defined nor analyzed by the courts, we may safely assume that the right of privacy extends to one's confidential financial affairs as well as to the details of one's personal life.’ (Id. at p. 656, 125 Cal.Rptr. at p. 555, 542 P.2d at p. 979.) Therefore, this court must indulge in a careful balancing of the need to protect the public, the courts and the legal profession from unethical attorneys, on the one hand, with the right of attorneys to maintain reasonable privacy regarding their financial and business affairs, on the other. This court must determine whether the benefits the public gains by the restraints outweigh the resulting impairment of constitutional rights; and whether there is an alternative less subversive of constitutional rights. (Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 501–502, 55 Cal.Rptr. 404, 421 P.2d 409.)

First it is necessary to see if appellant's right to privacy has been infringed and, if so, to what degree. Section 6086 of the Business and Professions Code provides that the State Bar may adopt rules for the mode of procedure in all cases of complaints against attorneys. The State Bar adopted rule 8, pursuant to section 6086, which provides that a State Bar preliminary investigation is confidential. Rule 21 provides that the purpose of a preliminary investigation is to ascertain whether probable cause exists for the issuance of a formal charge or charges. Rule 21 also provides: ‘The board of governors or a local administrative committee may in the absence of a complaint and of its own motion order a preliminary investigation to be conducted.’

The need to protect the public, the courts and the legal profession from incompetent or unethical attorneys is greater than the rights of attorneys to privacy in their business affairs. As noted above, the preliminary investigation is confidential and therefore the infringement on an attorney's right to privacy is slight.

Appellant also asserts that a preliminary investigation may come into the realm of attorney-client privilege. However, the attorney-client privilege is not applicable since the client, not the attorney, is the holder of the privilege. (See Evid. Code, § 953.) Moreover, there is no privilege under this section (lawyer-client privilege) as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.

Appellant also attacks the subpoena issued in the instant case and argues that it was issued in an unsupported exploratory search in violation of the Fourth Amendment. As noted above, the protection afforded by the Fourth Amendment may not be as broad in disciplinary proceedings. Furthermore, if the State Bar is required to attach an affidavit to a subpoena stating all its reasons for conducting a preliminary investigation, the confidentiality of the proceedings would be destroyed. Since the purpose of a preliminary investigation is to determine whether probable cause exists for the issuance of a formal charge, the confidentiality of these proceedings must be preserved, otherwise an attorney's reputation may be needlessly damaged.3

In ruling on an application for a preliminary injunction, the court must examine all the material before it in order to consider whether a greater injury will result to the defendant from granting the injunction than to the plaintiff in refusing it and, in making such determination, should deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. (Weingand v. Atlantic Sav. & Loan Assn. (1970) 1 Cal.3d 806, 820, 83 Cal.Rptr. 650, 464 P.2d 106.) The lower court did not abuse its discretion in denying the preliminary injunction.

Order affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Subdivision (f) of section 904.1 of the Code of Civil Procedure provides that an appeal may be taken from such an order.

2.  From the case of Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977, it can be seen that an individual has a reasonable expectation of privacy to materials he submits to third parties. (Id. at p. 657, 125 Cal.Rptr. 553, 542 P.2d 977.) In Valley Bank, the third party was the bank, but the same principle would apply to a billing from a doctor or information and papers given a client.

3.  Since rule 21 of the Rules of Procedure of the State Bar provides in part, ‘The member shall be allowed an opportunity to be heard in the course of the preliminary investigation,’ an attorney will have an opportunity to refute any findings during the investigation before formal charges are brought and without damage to his reputation.

BRAY,* Associate Justice. FN* Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

TAYLOR, P. J., and ROUSE, J., concur.