The opinion
SCHAUER, J., Dissenting.
The majority opinion, at the outset, has phrased its definition of the “two principal questions involved”; i.e.:
“(1) Is review available to petitioner at this stage of the disciplinary proceedings ?
“(2) Are discovery procedures available to the parties in such a proceeding ? ’ ’
I find it unnecessary, and as a matter of judicial policy undesirable, to undertake at this stage of the proceedings to spell out all the definitive answers within the broad scope of the majority’s questions.
My approach to the problem starts on a plateau of recognition that (Bus. & Prof. Code, § 6001) “The State Bar of California is a public corporation . . . [endowed with the power to] do all . . . acts . . . necessary or expedient for the administration of its affairs and the attainment of its purposes [and that]
“No law of this State restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies . . . shall be applicable to the State Bar, unless the Legislature expressly so declares.” Thus the state has formally recognized that the State Bar is a public corporation sui generis.
I do not find that article III, chapter III, title III, part IV of the Code of Civil Procedure (Depositions and Discovery, added by Stats. 1957, eh. 1904, p. 3322) has been expressly declared by the Legislature to be applicable to proceedings before the State Bar. I do find that the Legislature has expressly declared that (Bus. & Prof. Code, § 6010) “The State Bar is governed by a board known as the board of governors of the State Bar” and that (id., § 6025) “the board may formulate and declare rules and regulations necessary or expedient for the carrying out” of its functions. Furthermore, in this connection, it is noted that section 6085 provides that “Any person complained against shall be given reasonable notice and have a reasonable opportunity and right:
“(a) To defend against the charge by the introduction of evidence.
*306 “ (b) To be represented by counsel.
"(c) To examine and cross-examine witnesses.
“He shall also have the right to the issuance of subpoenas for attendance of witnesses to appear and testify or produce books and papers, as provided in this chapter” (i.e., the State Bar Act, ch. 4 of div. 3 of the Bus. & Prof. Code); that section 6086, dealing with “Buies of procedure by board,” specifies that “The board of governors, subject to the provisions of this chapter, may by rule provide the mode of procedure in all cases of complaints against members.” (Italics added.) Also significant in construing the scope of, and the intended limitations on, the statutory powers granted to the State Bar, article V (§ 6087) of the State Bar Act concludes “Nothing in this chapter shall be construed as limiting or altering the powers of the Supreme Court of this State to disbar or discipline members of the bar as this power existed prior to the enactment of Chapter 34 of the Statutes of 1927, relating to the State Bar of California.”
It has been noted that the State Bar is a public corporation sui generis. Not only is it by statute entitled to be recognized as an entity separate and apart from that of any other body politic of the state, but the character of the work, and the nature of the obligations and duties, of all members of that profession who constitute the State Bar, combine to make it unique. We need only read the duties of an individual attorney as enunciated in Business and Professions Code section 6068, and take notice of facts known to all of us, to perceive that members of the Board of Governors of the State Bar (with a total membership of some 22,000 lawyers) are charged with a task which is monumental in size and multitudinous in detail but which, nevertheless, must be handled in such a manner as to preserve inviolate, to the highest degree compatible with essential functioning, the confidentialities of its records.
Deposition and discovery procedures were compiled and enacted primarily in contemplation of ordinary civil trials. Court proceedings are fundamentally public proceedings. By contrast, proceedings by and before the board of governors of the State Bar, and most of their committees, are basically private and confidential. Section 6049 (Bus. & Prof. Code) provides that “In the conduct of investigations and upon the trial and hearing of all matters, the board and any committee having jurisdiction, including the examining committee, may:
*307 “ (a) Take and hear evidence pertaining to the proceeding.
“(b) Administer oaths and affirmations.
“(c) Compel by subpoena, the attendance of witnesses and the production of books, papers and documents pertaining to the proceeding. ’’
But there is no directive either in section 6049, or in section 6085, quoted supra, that such proceedings be public. Code of Civil Procedure section 124 provides (with exceptions not material here) that “The sittings of every court of justice shall be public, ’ ’ but there is no contention that such general legislation shall in any case override the express provision in section 6001 of the Business and Professions Code that “No law of this State restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies . . . shall be applicable to the State Bar.”
Certainly a member of the Bar charged with misconduct is entitled to a fair hearing. This necessarily entails—and I think the board of governors would be the last to challenge— reasonable opportunity to require the attendance of and to present witnesses, and to produce or require the production of documentary evidence. But I think also that in a proceeding wherein it becomes reasonably necessary to produce data claimed to repose only in confidential records of the State Bar, it is peculiarly desirable that the methods and means by which the ultimate essentials of such data can be made available shall in the first instance be worked out by the board of governors and not be held controlled by the general discovery procedures.
In Security-First National Bank v. Franchise Tax Board (1961) 55 Cal.2d 407, 418 , et seq. [ 11 Cal.Rptr. 289 , 359 P.2d 625 ], plaintiffs claimed that they were denied procedural due process because they were not permitted to examine certain documents which were considered by the Franchise Tax Commissioner in setting the bank tax rate. The information contained in the documents was tabulated in statistical form and transcripts of the returns of various corporations were made which contained the property tax and net income figures, with serial numbers instead of names being used to designate the corporations. At hearings held by the commissioner the banks were permitted to inspect the transcripts and the statistical material, and members of the commissioner’s staff, having possession of the original returns, answered questions as to their contents without disclosing the names of the corporations. (See Stats. 1943, ch. 352, *308 p. 1464.) We sustained the Franchise Tax Board. It is of course true that the cited case may be broadly distinguished from that now before us but it suggests that if statistics from confidential records are really required they can be produced without violating confidentiality. It also lends support to leaving with the State Bar the task of completing the proceeding before we undertake to review it.
We do not ordinarily review the mesne proceedings of a trial court before judgment has been entered; the same is true as to proceedings before the Industrial Accident Commission and the Public Utilities Commission. To review the actions of a committee of the State Bar which actions would inevitably be reviewed by the board before the making of a recommendation to this court seems somewhat akin to reviewing the recommendations of an Industrial Accident Commission’s referee before the commission had acted.
For the reasons stated I do not reach the full scope of the questions designated by the majority. I do conclude that (1) the statutory discovery procedures are not shown to have been expressly made applicable to, and hence should not, as such, be held to govern, proceedings before the State Bar; and (2) I would refuse review until final, or at least more determinative, action has been taken by the board.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied March 14, 1962. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.