Petition for Writ of Certiorari — Lenore Luann Albert, Petitioner v. State Bar of California
Supreme Court briefMay 15, 2018
Ask Donna
What actually matters in this document.
Text
CASE NO.
IN THE
SUPREME COURT OF THE UNITED STATES
LENORE LUANN ALBERT, Petitioner
VS.
STATE BAR OF CALIFORNIA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
CALIFORNIA SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
Lenore L. Albert
7755 Center Avenue, Suite #1100
Huntington Beach, CA 92647
Phone (714) 372-2264
Email: lenalbert@interactivecounsel.com
Petitioner, pro se
QUESTIONS PRESENTED
Whether the California State Bar standard 1.6 of 'clear and convincing evidence'
with the burden falling on the attorney being prosecuted is unconstitutional
because the proceeding is quasi-criminal in nature thus offending the member's
rights under the Fifth Amendment (self-incrimination) and Fourteenth Amendment
(fair and meaningful hearing) of the U.S. Constitution.
Whether California State Bar's procedure in a lawyer discipline case which bars the
disciplined lawyer from petitioning review of any grievance to a judge under Article
III of the U.S. Constitution or under Article VI of the California Constitution
satisfies the right to a fair and meaningful hearing under the procedural due
process guarantees of the Fourteenth Amendment and/or violates the lawyer's right
to petition under the First Amendment.
Whether depriving the disciplined attorney reasonable notice of her date of her
license to practice law being suspended in advance of the suspension violates the
due process clause of the Fourteenth Amendment.
Whether California State Bar's procedure of generating revenue from lawyers being
disciplined violates the Fourteenth Amendment Due Process and Equal Protection
Clause because it gives the prosecutor, investigator, and judge an incentive to
produce a certain adverse outcome.
Whether suspending and conditioning reinstatement of a lawyer's license to practice
law based on the lawyer's lack of wealth violates the equal protection clause and
due process clause of the Fourteenth Amendment.
Whether the standards laid out in Yick v Wo apply when a State Bar interferes with
a bar member's license during their campaign for District Attorney.
Whether California State Bar prohibition of allowing lawyers to prove the orders
being prosecuted were void makes California Business & Professions Code Section
6103 unconstitutional.
Whether California State Bar's suspension of an attorney's license to practice law
for failure to pay a private third party a debt violates the attorney's Fifth and
Fourteenth Amendment.
Whether California State Bar prohibition of allowing lawyers to prove cooperation
with State Bar investigations with evidence of other simultaneous ongoing
investigations makes California Business & Professions Code Section 6068(i)
unconstitutional because it is vague, uncertain or overbroad.
TABLE OF CONTENTS
OPINIONS BELOW ............................................................................................... 1
JURISDICTION.....................................................................................................1
CONSTITUTOINAL AND STATUTORY PROVISIONS INVOLVED ................2
STATEMENT OF THE CASE ...............................................................................7
REASONS FOR GRANTING THE WRIT.............................................................12
1.
II.
THE US SUPREME COURT SHOULD HEAR THIS MATTER BECAUSE
PETITIONER DID NOT RECEIVE A FAIR OR MEANINGFUL HEARING AND
No CONSTITUTIONAL COURT HAS JURISDICTION WHERE SHE CAN
ADDRESS HER GRIEVANCES ................................................................................12
Whether the California State Bar standard 1.6 of 'clear and
convincing evidence' with the burden falling on the attorney
being prosecuted is unconstitutional because the proceeding
is quasi-criminal in nature thus offending the member's
rights under the Fifth Amendment (self -incrimination) and
Fourteenth Amendment (fair and meaningful hearing) of the
U.S. Constitution ..................................................................................... 12
Whether California State Bar's procedure in a lawyer
discipline case which bars the disciplined lawyer from
petitioning review of any grievance to a judge under Article
III of the U.S. Constitution or under Article VI of the
California Constitution satisfies the right to a fair and
meaningful hearing under the procedural due process
guarantees of the Fourteenth Amendment and/or violates the
lawyer's right to petition under the First Amendment . ....................... 16
THE US SUPREME COURT SHOULD GRANT REVIEW TO
DECIDE
IMPORTANT
QUESTIONS
CONCERNING
VIOLATIONS OF EQUAL PROTECTION AND DUE PROCESS OF
FUNDAMENTAL RIGHTS BASED ON LACK OF WEALTH
21
Whether depriving the disciplined attorney reasonable notice
of her date of her license to practice law being suspended in
advance of the suspension violates the due process clause of
the Fourteenth Amendment . ................................................................. 21
Whether California State Bar's procedure of generating
revenue from lawyers being disciplined violates the
Fourteenth Amendment Due Process and Equal Protection
Clause because it gives the prosecutor, investigator, and
judge an incentive to produce a certain adverse outcome . ................... 23
iv
Whether suspending and conditioning reinstatement of a
lawyer's license to practice law based on the lawyer's lack of
wealth violates the equal protection clause and due process
clause of the Fourteenth Amendment . .................................................. 25
Whether the standards laid out in Yick v Wo apply when a
State Bar interferes with a bar member's license during their
campaign for District Attorney..............................................................31
Whether California State Bar prohibition of allowing lawyers
to prove the orders being prosecuted were void makes
California Business & Professions Code Section 6103
unconstitutional. .................................................................................... 32
Whether California State Bar's suspension of an attorney's
license to practice law for failure to pay a private third party
a debt violates the attorney's Fifth and Fourteenth
Amendment. ........................................................................................... 35
Whether California State Bar prohibition of allowing lawyers
to prove cooperation with State Bar investigations with
evidence of other simultaneous ongoing investigations makes
California Business & Professions Code Section 6068(i)
unconstitutional because it is vague, uncertain or overbroad..............36
CONCLUSION.............................................................................................................38
INDEX TO APPENDICES
APPENDIX A State Bar Review Department Decision dated 6-30-17
APPENDIX B State Bar Hearing Department Decision dated 10-19-16
APPENDIX C California Supreme Court Decision Denying Review dated 12-13-17
APPENDIX D California Supreme Court Order Denying Rehearing dated 2-14-18
APPENDIX E Order Denying Reinstatement or Waiver of Fees dated 5-04-18
V
TABLE OF AUTHORITIES
Cases
Bell v. Burson (1971) 402 U.S. 535, 539 [29 L. Ed. 2d 90, 94, 91 S. Ct. 15861 ..........24
Berger v. United States, 295 U.S. 78 * (U.S. 1935)....................................................11
Berlinghieri v. Department of Motor Vehicles 33 Cal 3d 394 (1983) ........................24
Bullock v. Carter, 405 US 134 (1972) .............................................................26, 29, 30
Chisom v. Roemer, 501 U.S. 380, 397 (U.S. 1991)......................................................35
Christopher v SmithKline Beecham, 567 U.5.142, 156 (2012)..................................32
Fuentes v. Shevin, 407 U.S. 67, 82 (1972) ..................................................................22
Hayward v Superior Court (2016) 2 CalApp 5th 10....................................................34
In re Findley 593 F3d 1048 (9th Cir 2010) ..................................................................30
In re Marriage of Fuller (1985) 163 CalApp 3d 1070, 1076 .......................................34
In re Rose (2000) 22 Cal 4th 430, 459..........................................................................37
In re Rose, 22 Ca14th 430, 93 CalRptr2d 325 (2000)......................................19, 20, 21
In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117 (1968) 12, 13,
14, 33, 34
In re Silverton, 36 Cal.4th 81 (2005) ..........................................................................19
In re Taggart 548 BR 275 (9th Cir BAP 2016) ............................................................30
In the Matter of Hundin (Review Dept. 1997) 3 Cal State Bar Ct. Rptr. 657...........36
Konigsberg v State Bar of California, 353 US 252, 273 (1957)............................24, 25
Lueras v BAC Home Loans, (2013) 221 Ca1App4th 49..............................................37
Mackovska v Bank of America, B27180, (8/15/17) unpublished.) ......... . .................... 37
Majd v Bank of America, (2015) 243 Ca1App4th 1293................................................37
Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ..........................................................22
Purcell v Gonzalez (2006) 127 S.Ct. 5 (2006), 549 U.S. 1, 166 L.Ed.2d 1.................32
Reynolds v. Sims, 377 US 533 (1964)....................................................................31, 32
Scheer v. State Bar (In re Scheer), 819 F.3d 1206 (9th Cir. Cal. 2016) ....................30
State Bar Committee on Legal Ethics v Smith 399 S.E. 2d 36 (1990) ......................15
Tate v. Short, 401 US 395 (1971) ..........................................................................28, 29
U.S. v. Carolene Products Co. (1938) 304 U.S. 144, 152-153, fn. 4 [82 L. Ed. 1234,
1241, 1242, 58 S. Ct. 778].........................................................................................24
Williams v. Illinois, 399 US 235 (1970) ................................................................28, 29
Womack v Lovell, (2015) 237 Ca1App4th 772.............................................................37
Yick Wo v. Hopkins, 118 US 356 (1886) .....................................................................32
Statutes
Bus & Prof Code 6068............................................................................ii, v, 3, 9, 12, 36
Bus& Prof Code 6086.10...............................................................................................4
Vi
Bus& Prof Code 6103 ................................................................................................ 3, 9
Bus& Prof Code 6140.7 ........................................................................................... 4, 29
Bus& Prof Code 9407..................................................................................................29
Cal Code Civ Proc § 2023.040......................................................................................34
CalPenal Code 1205.....................................................................................................29
Other Authorities
CALCRIM 3402, 3404-3406, 3411-3413, and 3425 .....................................................15
CALCRIM3408............................................................................................................15
https ://www dcbar.org/attorney- discipline/board-on-professionalresponsibilityfbprmission.cfm..................................................................................18
http s://www.nycourts gov/ruleslcommentslPDF/Comments -Uniform-AttorneyDisciplinary-Rule .pdf...............................................................................................17
.
.
Rules
CRC9.16 ......................................................................................................5, 19, 20, 22
Standard1.5........................................................................................................5, 21-22
Standard1.6.................................................................................................5, 12, 13, 14
Treatises
Erwin Chemerinsky, Constitutional Law: Principles and Policies
767 (3d ed. 2006)..........................................................................................................21
Constitutional Provisions
CalConst Art VI ..........................................................................................................16
CalConst. Art VI Sect. 6 ...............................................................................................3
CalConst. Art VT Sect. 9 ...............................................................................................3
U.S.C.S. Const. Amend. 1........................................................................................2, 12
U.S.C.S. Const. Amend. V.................................................................................2, 12, 16
XIV Amend. U.S. Const Art I... ii, iv, v, 2, 12, 13, 14, 16, 21, 23, 25, 28, 34, 35, 36, 37
VII
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment
below.
OPINIONS BELOW
The opinion of the highest state court to review the merits dated June 30, 2017
appears at Appendix A to the petition and is unpublished.
The opinion of the court dated October 19, 2016 appears at Appendix B to the petition
and is unpublished.
1 JURISDICTION
The date on which the highest state court decided my case was on December 13,
2017. A copy of that decision appears at Appendix C.
A timely petition for rehearing was thereafter denied on the following date:
February 14, 2018, and a copy of the order denying rehearing appears at Appendix
D.
Motion to reinstate petitioner's license, modify the California Supreme court order
anchor wiave the fees conditioned upon reinstatement was denied on May 04, 2018.
A copy of that order appears at Appendix E.
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
This Petition for Writ of Certiorari is filed within 90 days of the California Supreme
Court's denial of the Petition for Rehearing, under Rules 13.1 and 29.2 of this
Court.
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The following Amendments to the U.S. Constitution, articles to the California
Constitution, rules, regulations, and statutes, or relevant portion thereof are at
issue in this petition:
The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
U.S.C.S. Const. Amend. I
The Fifth Amendment's Self-Incrimination Clause provides:
No person shall be
himself.
.
.
.
compelled in any criminal case to be a witness against
U.S.C.S. Const. Amend. V
The Fifth Amendment's Due Process Clause provides:
No person shall be
law.
.
.
.
deprived of life, liberty, or property, without due process of
U.S.C.S. Const. Amend. V
The Fourteenth Amendment, Article 1 provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
U.S.C.S. Const. Amend. XIV Art 1
2
CALIFORNIA CONSTITUTION ARTICLE VI SECTION 6 AS ADDED BY
PROPOSITION 220 IN 1998:
Text of Section 6:
The Judicial Council consists of the Chief Justice and one other judge of the
Supreme Court, three judges of courts of appeal, 10 judges of superior courts, two
nonvoting court administrators, and any other nonvoting members as determined
by the voting membership of the council, each appointed by the Chief Justice for a
three-year term pursuant to- procedures established by the council; four members of
the State Bar appointed by its governing body for three-year terms; and one
member of each house of the Legislature appointed as provided by the house.
Council membership terminates if a member ceases to hold the position that
qualified the member for appointment. A vacancy shall be filled by the appointing
power for the remainder of the term.
Cal Const. Art VI Sect. 6
CALIFORNIA CONSTITUTION ARTICLE VI SECTION 9
The State Bar of California is a public corporation. Every person admitted and
licensed to practice law in this State is and shall be a member of the State Bar
except while holding office as a judge of a court of record.
Cal Const. Art VI Sect. 9
CALIFORNIA BUSINESS & PROFESSION CODE
6103. A willful disobedience or violation of an order of the court requiring him to do
or forbear an act connected with or in the course of his profession, which he ought in
good faith to do or forbear, and any violation of the oath taken by him, or of his
duties as such attorney, constitute causes for disbarment or suspension.
6068. It is the duty of an attorney to do all of the following:
(e) (i) To maintain inviolate the confidence, and at every peril to himself or herself
to preserve the secrets, of his or her client.
Never to reject, for any consideration personal to himself or herself, the cause of
the defenseless or the oppressed.
To cooperate and participate in any disciplinary investigation or other regulatory
or disciplinary proceeding pending against himself or herself. However, this
subdivision shall not be construed to deprive an attorney of any privilege
guaranteed by the Fifth Amendment to the Constitution of the United States, or
any other constitutional or statutory privileges. This subdivision shall not be
3
construed to require an attorney to cooperate with a request that requires him or
her to waive any constitutional or statutory privilege or to comply with a request for
information or other matters within an unreasonable period of time in light of the
time constraints of the attorney's practice. Any exercise by an attorney of any
constitutional or statutory privilege shall not be used against the attorney in a
regulatory or disciplinary proceeding against him or her.
6140.7 Costs assessed against a member publicly reproved or suspended, where
suspension is stayed and the member is not actually suspended, shall be added to
and become a part of the membership fee of the member, for the next calendar year.
Unless time for payment of discipline costs is extended pursuant to subdivision (c)
of Section 6086. 10, costs assessed against a member who resigns with disciplinary
charges pending or by a member who is actually suspended or disbarred shall be
paid as a condition of reinstatement of or return to active membership.
6086.10 (a) Any order imposing a public reproval on a member of the State Bar
shall include a direction that the member shall pay costs. In any order imposing
discipline, or accepting a resignation with a disciplinary matter pending, the
Supreme Court shall include a direction that the member shall pay costs. An order
pursuant to this subdivision is enforceable both as provided in Section 6140.7 and
as a money judgment.
(b) The costs required to be imposed pursuant to this section include all of the
following:
The actual expense incurred by the State Bar for the original and copies of any
reporter's transcript of the State Bar proceedings, and any fee paid for the services
of the reporter.
All expenses paid by the State Bar which would qualify as taxable costs
recoverable in civil proceedings.
The charges determined by the State Bar to be "reasonable costs" of
investigation, hearing, and review. These amounts shall serve to defray the costs,
other than fees for the services of attorneys or experts, of the State Bar in the
preparation or hearing of disciplinary proceedings, and costs incurred in the
administrative processing of the disciplinary proceeding and in the administration
of the Client Security Fund.
(c) A member may be granted relief, in whole or in part, from an order assessing
costs under this section, or may be granted an extension of time to pay these costs,
in the discretion of the State Bar, upon grounds of hardship, special circumstances,
or other good cause.
(d) In the event an attorney is exonerated of all charges following a formal hearing,
he or she is entitled to reimbursement from the State Bar in an amount determined
by the State Bar to be the reasonable expenses, other than fees for attorneys or
experts, of preparation for the hearing.
(e) In addition to other monetary sanctions as may be ordered by the Supreme
Court pursuant to Section 6086.13, costs imposed pursuant to this section are
penalties, payable to and for the benefit of the State Bar of California, a public
ri
corporation created pursuant to Article VT of the California Constitution, to promote
rehabilitation and to protect the public. This subdivision is declaratory of existing
law.
California Rule 9.16. (CRC 9.16) Grounds for review of State Bar Court decisions in
the Supreme Court
(a) Grounds
The Supreme Court will order review of a decision of the State Bar Court
recommending disbarment or suspension from practice when it appears:
Necessary to settle important questions of law;
The State Bar Court has acted without or in excess of jurisdiction;
Petitioner did not receive a fair hearing;
The decision is not supported by the weight of the evidence; or
The recommended discipline is not appropriate in light of the record as a
whole.
(Subd (a) amended effective January 1, 2007; adopted by the Supreme Court
effective February 1, 1991.)
(b) Denial of review
Denial of review of a decision of the State Bar Court is a final judicial
determination on the merits and the recommendation of the State Bar Court will
be filed as an order of the Supreme Court.
(CRC 9.16 was formerly CRC 954)
CALIFORNIA STATE BAR STANDARDS
1.5 AGGRAVATING CIRCUMSTANCES The State Bar must establish
aggravating circumstances by clear and convincing evidence. Aggravating
circumstances may include: (j) significant harm to the client, the public, or the
administration of justice; (k) indifference toward rectification or atonement for the
consequences of the misconduct;
. . .
1.6 MITIGATING CIRCUMSTANCES A member must establish mitigating
circumstances by clear and convincing evidence. Mitigating circumstances may
5
include: (a) absence of any prior record of discipline over many years of practice
coupled with present misconduct, which is not likely to recur; (b) good faith belief
that is honestly held and objectively reasonable; (c) lack of harm to the client, the
public, or the administration of justice... (f) extraordinary good character attested to
by a wide range of references in the legal and general communities, who are aware
of the full extent of the misconduct; (g) prompt objective steps, demonstrating
spontaneous remorse and recognition of the wrongdoing and timely atonement; (h)
remoteness in time of the misconduct and subsequent rehabilitation; (i) excessive
delay by the State Bar in conducting disciplinary proceedings causing prejudice to
the member; or (j) restitution was made without the threat or force of
administrative, disciplinary, civil or criminal proceedings.
1.1
STATEMENT OF THE CASE
This disciplinary suit arises from Petitioner's representation of a married
couple in an unlawful detainer proceeding that were previously defending
themselves in pro per.
Petitioner has been a member in good standing with this Bar since 2008 until
California State Bar suspended her license on or about March 20, 2018 and back
dated the suspension to February 14, 2018.
The clients were trying to prevent eviction from their home by a group of local
hard money lenders because they did not believe that they were in default on their
loan. There was documentary proof that in fact the lenders swapped out the terms
of the Note that Petitioner's clients signed with more onerous terms and merely
photocopied the client's signatures to the new note.
Unlawful detainer proceedings in California are summary proceedings
without all of the constitutional safeguards in place. The main thrust in these
proceedings is that anything can happen in as little as five days and they do not
have to be heard by judges.
Petitioner's clients were not proceeding before a judge, but a commissioner.
On August 31, 2012 the commissioner signed three discovery orders compelling
Petitioner's clients to further respond to written discovery that Petitioner's clients
were served with before Petitioner was representing them.
Although Petitioner was not made aware of the outstanding discovery when
she stepped into the case and made some type of rudimentary response as soon as
7
she was aware of the discovery, and the discovery motions never gave Petitioner
notice that sanctions were being sought against her; the commissioner ordered
Petitioner and her clients, jointly and severally, to pay attorney fees to the opposing
party under the California Discovery Act. The discovery sanctions were not
consolidated so that it could be an appealable order.
Petitioner and her clients filed a peremptory challenge against the
commissioner based on bias. The commissioner thereafter recused himself.
A new judge was assigned to the case. At the unlawful detainer hearing the
hard money lenders and loan servicer admitted that they changed the monthly loan
repayment amount and balloon payment with the borrower's knowledge or consent
and merely photocopied their signature pages onto the new note. However, they
argued the unlawful detainer court did not have jurisdiction to hear that matter
and possession under the summary proceedings was proper. The judge granted the
hard money lenders judgment in their favor and executed a writ of possession.
Petitioner's clients were then locked out of their home.
Three years and three months later, on December 15, 2015 the State Bar filed
charges against Petitioner for failing to obey the court orders issued in the unlawful
detainer case because the discovery sanctions (attorney fees) had not been paid to
the hard money lenders. The following day, the hard money lender's attorneys
recorded an Abstract of judgment in the County Recorder's office.
Petitioner's clients aware of the charges, nevertheless refused to waive their
attorney-client privilege in this regard.
Because the State Bar opened an investigation into the matter, the State Bar
demanded Petitioner pay both the hard money lenders plus' that State Bar an
additional $5,000.00 in order to avoid prosecution. Petitioner could not afford to pay
the amount demanded. On or about December 15, 2015 the State Bar filed a Notice
of Disciplinary Charges and posted it under Petitioner's member profile online
alerting the public that she was charged with four violations including the
disobeying the court order by failing to pay the discovery sanctions to the hard
money lenders and failing to cooperate in an investigation in another matter.
Neither charge was for violating any Rule of Professional Responsibility. They were
allegations that Petitioner violated California Business & Professions Code sections
6068 and 6103.
On October 16, 2016 a written opinion was filed and placed on Petitioner's
member page of the California State Bar website stating that she was found
culpable in committing three out of the four charges with the recommendation of a
one year suspension, stayed with 30 days actual suspension conditioned upon her
repayment of the discovery sanctions to the hard money lenders plus over
$18,000.00 to the State Bar. She would remain suspended until all amounts were
paid.
She appealed to the review department. The review department found that
Petitioner was culpable in committing only two out of the four charges and kept the
recommended punishment unchanged.
So, she petitioned the California Supreme Court for review. On December 13,
2017 the California Suprme Court summarily denied review. On February 14,
2018 it also denied her petition for rehearing.
On February 20, 2018 Petitioner filed' for bankruptcy under Chapter 13.
On March 9, 2018 Petitioner checked the status of her license which still
showed active and able to practice law so she paid her filing fee to run as the first
female ever elected in Orange County as District Attorney. She requested a fee
waiver for the $32,000.00 cost of a candidate statement based on indigency.
On March 20, 2018 the State Bar informed Petitioner that her thirty day
suspension had been back dated to start on February 14, 2018 and they were not
going to reinstate her license until she paid the State Bar over $18,000.00 and the
hard money lenders over $5,000.00 plus interest. She had made her first plan
payment under Chapter 13.
Petitioner moved the State Bar court, the Review Department, and the
California Supreme Court to modify the order conditioning reinstatement based on
payment, and waive the fees and costs associated with reinstatement of her license
due to her indigent status. On May 4, 2018 the Review Department denied the
request in Bank. Once again, The California Supreme Court did not act.
Initially, the federal questions were raised in a motion to dismiss the charges
in the State Bar court. They were raised again during "trial" and in trial motion
papers and requests filed by Petitioner.
10
Petitioner then raised her constitutional concerns to the Review Department
and then to the California Supreme Court.
She also raised them in the U.S. District Court, Orange County Superior
Court, California Court of Appeal, and before the U.S. Bankruptcy court. However,
the State Bar insists that none of these other venues have subject matter
jurisdiction over this matter. In fact, the only venue that appears in the mind of the
California State Bar to hold subject matter jurisdiction is the California Supreme
Court but in or about 1998, the California Supreme Court and legislature changed
the way disciplinary proceedings are reviewed which gave the California Supreme
Court discretion to review the matter or not. There has been no substantial review
by the California Supreme Court since the rule change
-
leaving lawyers in
California the only professionals that can never seem to get their cases reviewed by
a Constitutional VI judge. Instead the State Bar gets to act as investigator,
prosecutor, judge and jury
-
the one venue where there is a financial incentive to
investigate, prosecute, rule and find in a certain way because they are full time paid
employees of the State Bar and the State Bar derives all of its revenue from its
members, the most coming disciplinary matters.
It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction
as it is to use every legitimate means
to bring about a just one.
Berger v. United States, 295 U.S. 78 * (U.S. 1935)
11
REASONS FOR GRANTING THE PETITION
I.
THE US SUPREME COURT SHOULD HEAR THIS MATTER BECAUSE PETITIONER DID NOT
RECEIVE A FAIR OR MEANINGFUL HEARING AND No CONSTITUTIONAL COURT HAS
JURISDICTION WHERE SHE CAN ADDRESS HER GRIEVANCES
A. Whether the California State Bar standard 1.6 of 'clear and convincing
evidence' with the burden falling on the attorney being prosecuted is
unconstitutional because the proceeding is quasi-criminal in nature thus
offending the member's rights under the Fifth Amendment (selfincrimination) and Fourteenth Amendment (fair and meaningful hearing) of
the U.S. Constitution.
Ms. Albert did not receive a fair hearing on the culpability portion of the
§6068(i) or the §6103 charges because the State Bar court did not allow testimony
or evidence on the material issues which were relevant to Ms. Albert's case as
stated above.
The State Bar erroneously refused to allow many of Ms. Albert's witnesses to
testify on her behalf or allow her to produce evidence at trial in her defense. [RT
3:1-11; 2:79-811 Due Process should dictate that the Attorney is afforded a full and
adequate opportunity to demonstrate that the charge is erroneous. XIV Amend.
U.S. Const Art I. In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d
117 (1968)
Although Petitioner was not allowed to call her witnesses or introduce all of
her evidence, California has decided an attorney shares the burden of proof by clear
and convincing evidence in order to avoid discipline although this Court already
determined attorneys must be afforded due process because disciplinary
12
proceedings are quasi-criminal in nature. In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct.
1222, 1226, 20 L. Ed. 2d 117 (1968)
California statutes splitting the burden of proof/burden of persuasion
between the attorney and the State Bar in attorney disciplinary proceedings. This
conflict with the State Bar statutes of other states leading to disparate results and
with this Court's precedent holding such proceedings are quasi-criminal in nature.
California State Bar places the burden of proof on the attorney being
prosecuted under Standard 1.6 to prove by 'clear and convincing evidence' there is
some mitigation to the charges being alleged before the prosecution has rested and
before the judge has ruled on culpability.
This Court should determine whether placing the burden of proof and
persuasion on an attorney being prosecuted is unconstitutional because the
proceeding is quasi-criminal in nature thus offending the member's rights under the
Fifth Amendment (self -incrimination) and Fourteenth Amendment (fair and
meaningful hearing) of the U.S. Constitution. In re Ruffalo, 390 U.S. 544, 550, 88 S.
Ct. 1222, 1226, 20 L. Ed. 2d 117 (1968)
Determining the proper burden of proof and which party shoulders it is a
compelling reason for the exercise of the Court's discretionary jurisdiction because
attorneys deserve comity.
As it exists today, each state uses a different burden of proof from
preponderance of the evidence to clear and convincing evidence. The states also
differ as to which party bears the burden or if it is split.
13
The reasons for granting review of this petition, overlap with Cramp ton v
Commission for Lawyer Discipline 17-1527 in the broader sense that attorneys in
California, like the attorneys in Texas are being denied their substantive and
procedural Fourteenth Amendment due process rights to a fair and meaningful
hearing.
Being able to keep a professional license under equal protection of the law is
a fundamental right. Lawyer disciplinary cases are "quasi-criminal" adversarial
proceedings. In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117
(1968). Consequently, comity of burden of proof/persuasion required before taking
away a professional's right to practice law should be a national concern appropriate
for review and determination by this Court.
The California State Bar court determined that by Petitioner not taking the
stand in her defense, she could never meet her burden of proof (although California
law required the State Bar to prove culpability by clear and convincing evidence).
California actually splits the burden of proof and uses evidentiary presumptions to
shift the burden to the attorney in many instances. Std 1.6 requires the State Bar
member to prove by "clear and convincing evidence" any mitigation to culpability or
aggravating factors suggested by the prosecution.
This shifting and heightened 'clear and convincing standard' for the member
to meet is unconstitutional due to the quasi criminal nature of the proceeding. In
contrast, the criminal jury instructions in California make it clear that the defense
never has the heightened burden of proof in order to prove an affirmative defense
14
such as entrapment (burden is preponderance of the evidence CALCRIM 3408). In
fact, the prosecution still carries the burden in most of the defenses in California
criminal trials. (See, e.g. CALCRIM 3402, 3404-3406, 3411-3413, and 3425).
Oregon State Bar does not have the Bar member shoulder any burden. (OSB
Rule 5.2 and no separate rule on mitigation). West Virginia State Bar uses a
"preponderating and clear evidence" standard only required of the State Bar
Committee on Legal Ethics vSmith 399 S.E. 2d 36 (1990) (no separate rule on
mitigation). Texas State Bar uses preponderance of the evidence standard again
solely relegated to the prosecutor to prove. (no separate rule on mitigation).
There is no comity of law on burden of proof and burden of persuasion
amongst the states. It's anarchy. Considering the drastic implications of losing a
professional license, and the fact that California has carved out a portion of the
proceeding and deemed the burden to shift to the bar member to prove by clear and
convincing evidence whenever there is an issue of mitigation or presumption at
play, this Court should take up the issue.
Also, it appears that the law is not settled as to whether a Fifth Amendment
violation can occur where no criminal case was ever initiated. This Court granted
certiorari in City ofHays, Kansas v. Vogt (No. 16-1495), to determine in a § 1983
case "Whether the Fifth Amendment is violated when statements are used at a
probable cause hearing but not at a criminal trial." If it is not clearly established
that use at a probable cause hearing violates the Fifth Amendment, then it is a
fortiori not clearly established that considering a refusal to answer in a non-
15
criminal licensing decision violates the Amendment. To such an extent, this petition
holds similar issues to the Michigan Gaming Control Board v Moody, 17-1142
(petition for cert denied).
The State Bar argued Ms. Albert did not testify so "the State Bar Court was
entitled to conclude from the evidence she willfully disobeyed three court orders."
[RB 91 The California Supreme Court adopted that argument when refusing to
review her petition from the Hearing Department decision. Mens rea should not
be shifted to the State Bar member in a quasi-criminal hearing and it is an issue
this Court has never decided in the attorney licensing context. Thousands of
attorneys across California and the nation could benefit from this Court's review.
Petitioner contends that the State Bar is violating her Fifth Amendment rights by
requiring her to surrender her right to remain silent in exchange for maintaining
licensure.
B. Whether California State Bar's procedure in a lawyer discipline case which
bars the disciplined lawyer from petitioning review of any grievance to a
judge under Article III of the U.S. Constitution or under Article VI of the
California Constitution satisfies the right to a fair and meaningful hearing
under the procedural due process guarantees of the Fourteenth Amendment
and/or violates the lawyer's right to petition under the First Amendment is
an important question of federal law that has not been, but should be, settled
by this Court
In California there is no required review by a Constitutionally appointed or
elected sitting judge before the attorney's license is ripped away from them. It is sui
generis.
In California, judges are appointed to a State Bar court that are not in a Title
VI court (Cal Const Art VT), and prosecutors get to hold a bench trial where there
16
are no rules of evidence like in criminal or civil trials followed. The member can be
tried on a violation of a Rule of Professional Responsibility or any other purported
violation of a statute. The losing Bar member can appeal to the review department
which is three more appointed State Bar judges, again not a Title VI court who then
issue a ruling. Finally, the Bar member can petition the California Supreme Court
to review the decision, but it has the discretion to summarily deny review and has
apparently used that discretion since at least 2005.
In New York, in contrast, each Appellate Division appoints a 21 member
committee of which at least three are lay persons and the rest are attorneys with
their own law practice in the same community. A quorum of that committee of
practicing attorneys and members of the community determines if a Rule of
Professional Responsibility was violated. There is no incentive in New York's
system for the State Bar investigator, prosecutor or committee members to testify
or rule in a certain way. Their paycheck and benefits are not tied to the outcome
whereas in California, it is directly related. See,
http s ://www.nycourts. gov/rules/comments/PDF/Comments -Uniform-AttorneyDisciplinary-Rule .pdf
If California State Bar cannot find culpability then there is no revenue for
their paychecks because the bulk of revenue comes from disciplinary proceedings
and investigations, not from annual member dues. Tax dollars are not allocated to
the California State Bar judges, prosecutors and investigators who are paid to work
full time for the State Bar; they do not have their own law practice.
VWA
Moreover, in New York the investigation and proceedings are kept
confidential. Whereas in California, the State Bar publishes the charges on its
website under the member's name before any findings of fact are made.
Washington D.C. is a hybrid attorney disciplinary system between these two
different systems. It has a nine member volunteer board appointed by the D.C.
Court of Appeal who reviews decisions from the hearing or review department. The
nine member board consists of voluntary attorneys and two members of the public.
It is their final say on whether a member is punished or not. Like New York, there
is no financial incentive for them to punish a member because they are all
volunteers. They cannot issue orders of suspension or disbarment and their orders
are subject to review by the Court of Appeal. See, https//www.dcbar.org/attorneydisciplinefboard-on-professional-responsibilityfbprmission. cfm
California used to rely on volunteers in its disciplinary process, but that
changed in or about 1998. It currently charges members approximately $400.00 per
year for annual dues, but the disciplinary costs to defend charges tops $18,000.00.
Its audits consistently show it is making more money than it should. California
State Bar is one of the largest and most powerful agencies in the country now.
Most states like Nebraska have disciplinary matters either go into their
judicial system or to their administrative hearings department that hears all
licensing matters for the state. The State Bar retain their membership benefits.
California split the wrong way, retaining disciplinary proceedings and creating a
trade association for memberships, but that is outside the scope of this petition.
The point here is that the California supreme court is not required to actually
review a finding by the State Bar of California and the rules prohibit any other
court from obtaining subject matter jurisdiction in order to do so. In In re Rose, 22
Cal4th 430, 93 CalRptr2d 325 (2000) the majority on a split panel held that this
was Constitutional because Rule 954 (n CRC 9.16) required the California Supreme
Court to review the decision if there was a reason to warrant it. However, since that
decision came down almost two decades ago, the California Supreme Court has yet
to review one single decision made by the State Bar, finding no reason to warrant it
and there is no avenue for the lawyer to proceed down in order to have that decision
reviewed.1
Justice Brown recognized this process "seems antithetical to the
constitutional design" and dissented noting that the decisionmakers were being
"driven by bureaucratic agendas or political ties." To paraphrase "any process" does
not equal "due process." In re Rose, 22 Cal4th 430, 93 CalRptr2d 325 (2000).
The California Supreme Court took away California lawyers right to
meaningful judicial review of government depriving them of their license and thus
their livelihood.
"It is founded on the rock of the constitutional right to meaningful
judicial review of government acts intended to deprive someone of the
means of livelihood. Review by a constitutional court, review by real
The closest, the California Supreme Court came to reviewing a petition by a State Bar member was
in In re Silverton, 36 Ca1.4th 81 (2005), where the California Supreme Court denied review sought
by the Bar member and then decided to review the discipline imposed on its own motion and found
the attorney should be disbarred without ever looking at the underlying merits. As such, this case
cannot help to bolster the State Bar's position on the purportedly constitutionality of its process.
19
judges whose allegiance is to the judiciary, to its standards and ideals
to the rule, in short, of law."
-
In re Rose, 22 Cal4th 430, 93 CalRptr2d 326 (2000)
Unlike other licensed professionals, California attorneys have no right to
seek a writ of mandamus from the California Superior court or any other Article VT
court, meaning a real judge. Justice Brown recognized this disparate treatment.
The majority and state legislature justified taking away lawyers' due process rights
on the grounds there were so many attorneys in California.
"Unless, by dint of skill or luck, the issues are framed so they are
deemed to fall within the ambit of rule 954, an attorney facing
suspension or disbarment from the right to practice her profession gets
no hearing, no opportunity for oral argument, and no written
statement of reasons
from this or any other article VT court. (Cal.
Const., art. VT, § 14; hereafter article VT.) Instead, she gets a summary
denial of review, the one-line order. Is that enough? Regrettably, it
seems that, for now at least, it will have to do.
-
In re Rose, 22 Cal4th 430, 93 CalRptr2d 325 (2000)
California Supreme Court justice J Kennard, also unsatisfied with the
holding in Rose, pointed out the great irony in that "The majority's decision here
produces a startling anomaly: Attorneys are the only persons whose state
occupational licenses can be revoked or suspended without a judicial hearing. When
the right to continue practicing a trade or profession is at stake, only attorneys are
denied their day in court." In re Rose, 22 Cal4th 430, 93 CalRptr2d 325 (2000)
CRC 9.16 (formerly 954(a)) as applied is unconstitutional because the
California supreme court does not "review disciplinary proceedings conducted in
violation of the law, or which result in recommended discipline that is inappropriate
20
under the circumstances." In re Rose, 22 Cal4th 430, 93 Ca1Rptr2d 325 (2000) Since
the California supreme court never actually reviews the petitions by the Bar
members since its ruling in 2000, it never knows whether there was a violation of
the law or if the recommended discipline was inappropriate.
Under the Equal Protection Clause of the Fourteenth Amendment, a state
cannot "deny to any person within its jurisdiction the equal protection of the laws."
Erwin Chemerinsky, Constitutional Law: Principles and Policies 767 (3d ed. 2006).
Under Standard 1.5 an aggravating factor is 'indifference.' Indifference is not
defined. "Indifference" needs to be defined by the U.S. Supreme Court. Anything
short of an admission of guilt by a Bar member is considered a "lack of indifference"
which increases the sanction. Here, Ms. Albert had legal and factual support for her
defense and she was entitled to use it. That is not indifference. That is zealous
advocacy for her license. All of these tidbits add up to lawyers being denied equal
protection of the laws warranting review.
II.
THE US SUPREME COURT SHOULD GRANT REVIEW TO DECIDE
IMPORTANT QUESTIONS CONCERNING VIOLATIONS OF EQUAL
PROTECTION AND DUE PROCESS OF FUNDAMENTAL RIGHTS
BASED ON LACK OF WEALTH
A. Whether depriving the disciplined attorney reasonable notice of her date of
her license to practice law being suspended in advance of the suspension
violates the due process clause of the Fourteenth Amendment.
Currently, the attorney does not become informed of the first day of
suspension until after the conditions as part of the suspension has passed thus
giving then no fair opportunity to comply. For example, Petitioner was given a 30
21
day suspension. On March 20, 2018 the State Bar first informed Petitioner that her
30 day suspension actually started on February 14, 2018 relying on CRC 9.16.
Neither the order itself nor any California Rules of Court make it clear that
Petitioner had any notice her first day of suspension would occur on February 14,
2018 before February 14, 2018. That violates due process. It was impossible for
Petitioner or any other attorney to comply with the main term of suspension (stop
practice of law) when they are not notified in advance.
This Court's longstanding view is that "due process is flexible and calls for
such procedural protections as the particular situation demands." Morrisseyv.
Brewer, 408 U.S. 471, 481 (1972). "If the right to notice and a hearing is to serve its
full purpose, then, it is clear that it must be granted at a time when the deprivation
can still be prevented." Fuentes v. She yin, 407 U.S. 67, 82 (1972) There is no
compelling government interest in failing to give attorneys who are going to be
suspended from practice reasonable notice so that they can wind up legal matters,
get their financial affairs in order and transfer their clients as necessary to other
legal professionals. The risk of harm to the bar member and to her clients, on the
other hand, is substantial. Clients who owe money for costs and services advanced
have no incentive to pay the attorney now suspended leaving the attorney in a
financial lurch. Court deadlines and other matters scheduled for the handling
attorney create a crises for the new attorney that must handle the trial files.
Moreover, the conditions of probation such as not practicing law become impossible
22
to comply with because attorneys practice law on a daily basis until they have
notice of an actual, verifiable suspension.
No court has subject matter jurisdiction over the California State Bar to hear
and decide this issue that is a core federal right of great importance to thousands of
professionals, so the U.S. Supreme Court should use its discretion and grant review.
Without it, there is truly no absolute right to petition for an attorney's grievances
under the First Amendment in California.
B. Whether California State Bar's procedure of generating revenue from lawyers
being disciplined violates the Fourteenth Amendment Due Process and Equal
Protection Clause because it gives the prosecutor, investigator, and judge an
incentive to produce a certain adverse outcome.
First, unlike other states, California State Bar holds its own disciplinary
hearings by paid staff in a court that is not a constitutional court. It also supports
itself financially from charging attorneys in excess of $18,000.00 to defend
themselves against the charges. Whether holding a quasi-criminal proceeding
without constitutional court review before the investigator, prosecutor, judge and
jury who have a financial incentive to make sure a result against the attorney
occurs has never been tested by this court. The pulling of money on one end and the
bar member trying to save their license on the other.
To pass strict scrutiny, the government has the burden of proving its law or
policy (1) provides a compelling government interest; (2) that is narrowly tailored in
such a way to achieve that goal; and (3) this is the least restrictive means in order
for the government to achieve that compelling government interest.
"when determining which rights are "fundamental" for due process
purposes [under the U.S. Constitution], a court's attention focuses
23
primarily on whether the right (1) is specifically guaranteed by the
Constitution, (2) affects the integrity of the political process, or (3) has a
disproportionate impact upon a discrete and insular minority. (U.S. v.
Carolene Products Co. (1938) 304 U.S. 144, 152-153, fn. 4 [82 L. Ed.
1234, 1241, 1242, 58 S. Ct. 7781.)" Berlinghieri v. Department ofMotor
Vehicles 33 Cal 3d 394 (1983)
Second, California supreme court has already found that retention of a
drivers license is a right or interest important enough to individuals in their life
situations to require an independent judicial review of the evidence and as such
rises to a fundamental right under the Bixby analysis. Berlinghieri v. Department
ofMotor Vehicles 33 Cal 3d 394, 398 (1983)However, this same court does not find a
lawyer's professional license is a right or interest important enough to require an
independent judicial review, and as such California is discriminating against
lawyers as a profession. Just like a drivers license, "the revocation or suspension of
that [Bar] license, even for a six-month period, can and often does constitute a
severe personal and economic hardship." Berlinghieri v. Department ofMotor
Vehicles 33 Cal 3d 394, 398 (1983), citing Bell v. Burson (1971) 402 U.S. 535, 539
[29 L. Ed. 2d 90, 94, 91 S. Ct. 15861 As such, California's failure to have a
Constitutional court independently review the entire administrative record before
deciding to suspend or revoke an attorney's license should be reviewed to determine
if that is constitutional. Berlinghieri v. Department ofMotor Vehicles 33 Cal 3d
394, 398-399 (1983)
In Konigsberg v State Bar of California, 353 US 252, 273 (1957) the US
Supreme Court reviewed the California State Bar's role in determining whether
Konigsberg was of good moral character. This was during the communist scare of
24
the 1950s when people were being haled into star chambers hearings and grilled
about their Associations and affiliations with others. This Court reversed and
remanded noting that "We recognize the importance of leaving States free to select
their own bars, but it is equally important that the State not exercise this power in
an arbitrary or discriminatory manner nor in such way as to impinge on the
freedom of political expression or association. A bar composed of lawyers of good
character is a worthy objective but it is unnecessary to sacrifice vital freedoms in
order to obtain that goal. It is also important both to society and the bar itself that
lawyers be unintimidated —free to think, speak, and act as members of an
Independent Bar." Konigsberg vState Bar of California, 353 US 252, 273 (1957)
It appears that in 2000, the California State Bar stepped into the wayback
machine and entered the court of Freisler in Germany.
C. Whether suspending and conditioning reinstatement of a lawyer's license to
practice law based on the lawyer's lack of wealth violates the equal protection
clause and due process clause of the Fourteenth Amendment.
This Court has determined that criminal statutes that discriminate based on
economic status violates a person's rights under the equal protection and due
process clause as a fundamental right. This Court has never determined if the same
is true for licensed attorneys subjected to quasi-criminal disciplinary proceedings
and it should because it affects thousands attorneys, their livelihoods and those
underrepresented segments of the public that impecunious so often represent.
The California State Bar conditioned Petitioner's reinstatement to practice
law after her thirty day suspension based on payment of money to private third
25
parties (not her clients or children or spouse) in the amount of $8,929.37 and to the
State Bar in excess of $18,000.00. The Review Department denied an order
requesting to modify or waive the fees on the grounds "it has no authority to do so"
and there is nothing in the rules that requires the California Supreme Court to act
-
and in fact it has not acted on the Petitioners request. Her suspension would have
been over on March 16, 2018 if she could have afforded to pay these fees. The only
reason her license was not reinstated on March 16, 2018 was on the ground she
could not make these payments.
Conditioning the reinstatement of a license based on extraordinary payment
should be reviewed to determine if it violates the equal protection clause and
Petitioner's due process rights. The law turns any minimal suspension into a
disbarment when targeted at attorneys who lack wealth like Petitioner that
represent the poor and underrepresented. When government legislates or acts
either on the basis of a "suspect" classification or with regard to a "fundamental"
interest, the traditional standard of equal protection review is abandoned, and the
Court exercises a "strict scrutiny." Under this standard government must
demonstrate a high degree of need, and usually little or no presumption favoring
the classification is to be expected. Language in a number of opinions appear to
suggest that poverty was a suspect condition, so that treating the poor adversely
might call for heightened equal protection review. For example, in Bullock v.
Carter, 405 US 134 (1972), the Court invalidated the Texas filing-fee requirement
for primary elections. The system provided "no reasonable alternative means of
26
access to the ballot" (Id., at 149), so inability to pay occasioned an absolute denial of
a position on the primary ballot. Here, the State Bar likewise failed to provide any
reasonable alternative means of access to Petitioner's license other than payment,
also creating an absolute denial of her right to her license to practice law. The Court
used the strict scrutiny test to find that the law violated the equal protection clause.
The same factors are present in the California disciplinary system. California
charges an attorney who desires to defend against the charges over $18,000.00 to do
so. According to the Review Department, the system provides no other alternative
means to reinstate the Bar member's license without paying the full fee. The
inability to pay due to lack of wealth of the lawyer creates an absolute denial of the
right to practice law after the short suspension period is over. There is no important
government purpose by blocking attorneys who lack wealth from practicing law. It
is also invidious discrimination against the consumer advocate who decides to
represent the poor and underrepresented. The well-heeled attorney who decides to
make a larger living defending corporate or government interests would never be
put in this position because their clients would pay their bills so the State Bar
would not be stepping in as a Debt Collector for third parties in the first instance;
and even if their clients did not pay their bills, the attorney taking home a six figure
income could well afford the cost of $18,000 to defend against State Bar charges. As
such the well heeled attorney would be limited to a mere 30 day suspension
whereas impecunious attorneys like petitioner are suspended or effectively
disbarred altogether based purely on their economic status. This leads to the
27
ancillary effect of denying access to the courts of potential clients of lesser means.
At a minimum, this Court should determine if certain fundamental liberties and
interests are involved. If so whether government can justify the adverse effect by
showing a compelling interest necessitating the classification and by a showing that
the distinctions are required to further the governmental purpose.
.
Williams
worked an invidious discrimination solely because he was too poor to pay the fine,
and therefore violated the Equal Protection Clause. "In each case, the Constitution
prohibits the State from imposing a fine as a sentence and then automatically
converting it into a jail term solely because the defendant is indigent and cannot
forthwith pay the fine in full." Tate v. Short, 401 US 395, 398 (1971) Analogous to
Williams and Tate, Petitioner remains suspended solely because of her indigency
and cannot forthwith pay the fine in full.
This Court has never determined if the reasoning applied in Williams v.
illinois, 399 US 235 (1970) and Tate v. Short, 401 US 395 (1971) extends to lawyers
whose licenses are suspended on failure to pay outside the statutory scheme of child
support obligations.
California State Bar should not be allowed to keep an attorney's license
suspended based on their lack of wealth because it would inconsistent with the
Equal Protection Clause of the Fourteenth Amendment. It cannot limit the
punishment of suspension to payment of the statutory fees imposed if one is able to
pay it, yet convert the payment of the statutory fees into an extended suspension of
the practice of law or disbarment for an indigent attorney without the means to pay
those fees. The suspension in such a case is not imposed to further any penal
objective of the State Bar. It is imposed to augment the State Bar's revenues but
obviously does not serve that purpose because the suspended attorney cannot pay
because she is indigent and her suspension of her ability to practice law, rather
than aiding collection of the revenue, constrains it.
The time of suspension should be limited and the same for all attorneys,
without regard to their economic status. Williams v. Illinois, 399 US 235, 244 (1970)
Since, California Bus & Prof Code 6140.7 conditions payment for
reinstatement, this Court should grant review to determine if it is consistent with
the Equal Protection Clause in the case of suspending professional licenses of
lawyers.
Indeed, whether California is failing to give the same amount of equal
protection to the legal profession in comparison with those convicted of crimes is an
issue of invidious discrimination. Cal Penal Code 1205 allows for paying fines in
installments, whereas the Bus & Prof Code 9407 does not. Tate v. Short, 401 US
395 (1971).
Williams v. Illinois, 399 US 235 (1970), and Tate v. Short, 401 US 395 (1971)
struck down criminal penalties that subjected indigents to incarceration simply
because of their inability to pay a fine, this Court should grant review and strike
down the Bus & Prof Code 6140.7.
Equal protection clause stretches beyond criminal fines. In Bullock v. Carter,
405 US 134 (1972), the Court invalidated the Texas filing-fee requirement for
29
primary elections imposed on candidates running for office because it effectively
barred all potential candidates who were unable to pay the required fee. The system
provided tin0 reasonable alternative means of access to the ballot" Bullock v. Carter,
405 US 134 (1972), inability to pay occasioned an absolute denial of a position on
the primary ballot.
Fundamental interests include the right to vote and the right to be free of
wealth distinctions in the criminal process.
This Court has not answered the question whether attorneys being
disciplined also enjoy the fundamental right to be free of wealth distinctions in the
quasi criminal proceeding of attorney discipline, triggering active review when de
jure or de facto official distinctions are made with respect to them.
There is also a split in the Ninth Circuit as to the affect this has on
dischargeability. In re Taggart 548 BR 275 (9th Cir BAP 2016) court held the fees
were dischargeable in bankruptcy. In re Findley 593 F3d 1048 (9th Cir 2010) court
held the fees were not dischargeable. See, Scheer v. State Bar (In re Scheer), 819
F.3d 1206 (9th Cir. Cal. 2016) held that the fees owed to client were dischargeable
but the fees owed to the State Bar were not. The mess has permeated its way into
the federal US Bankruptcy system that was designed to give the debtor a fresh
start. Petitioner contends that as a policy matter lurking behind the Constitutional
guarantees, this Court should grant review and determine whether attorneys have
a fundamental right in order to prevent the differential governmental treatment of
those attempting to exercise their right.
30
D. Whether the standards laid out in Eck v Wo apply when a State Bar
interferes with a bar member's license during their campaign for District
Attorney.
It is undisputable that Petitioner and Respondent have a longstanding
difference of opinion on their vision of how the State Bar of California should be
operating for the benefit of their members and each have lobbed their fair share of
loam at each other. As the Review Department put it
Albert was admitted to practice law in December 2000, and has no
prior record of discipline. She is a consumer advocate attorney and
often represents homeowners in residential and/or mortgage litigation
cases. While this matter was pending in the Hearing Department [filed
12/15/151, Albert was engaged in civil litigation against the State Bar
[filed 12/22/151, claiming retaliation for exposing its purported practice
of prosecuting consumer advocates for revenue. [Opn pg 21
However, on March 9, 2018 in reliance that Petitioner's status that she was
still able to practice law she filed papers to run for Orange County District
Attorney. On March 16, 2018 she was informed of a local blog post captioned
Suspension Day with her name on it. On March 20, 2018 the State Bar uploaded a
document to her webpage informing her the State Bar suspended her license
effective February 14, 2018.
"Such a case "touches a sensitive and important area of human rights," and
"involves one of the basic civil rights of man," presenting questions of alleged
"invidious discriminations
.
.
.
against groups or types of individuals in violation of
the constitutional guaranty of just and equal laws." 316 U. S., at 536, 541. Reynolds
v. Sims, 377 US 533, 561 (1964).
Undoubtedly, the right of suffrage is a fundamental matter and so too must
the right to fun for office be unencumbered and not shrouded by a State Bar putting
ii
doubts as to the legitimacy of thd candidate on the ballot. As this Court said, "the
right to exercise the franchise in a free and unimpaired manner is preservative of
other basic civil and political rights, any alleged infringement of the right of citizens
to vote must be carefully and meticulously scrutinized. Almost a century ago, in
Yick Wo v. Hopkins, 118 US 356 (1886), the Court referred to "the political
franchise of voting" as "a fundamental political right, because preservative of all
rights." 118 U. S., at 370. Reynolds v. Sims, 377 US 533, 562 (1964).
"Legislators represent people, not trees or acres." Id. Attorneys do, too. The
State Bar's actions are retaliatory and the Court should use its discretion to review
this case it is not just one affecting attorneys. It affects people who want a real
choice when voting for the next District Attorney and people who want
representation free and unimpaired without this cloud of disqualification. Reynolds
v. Sims, 377 US 533 (1964). The right to vote is being debased and diluted by
putting fear into the general public that a vote for Petitioner may not count.
Confidence in the integrity of our electoral processes is essential to the functioning
of our participatory democracy. The same should be true of our attorney disciplinary
system, too. Purcell v Gonzalez (2006) 127 S.Ct. 5 (2006), 549 U.S. 1, 166 L.Ed.2d 1
E. Whether California State Bar prohibition of allowing lawyers to prove the
orders being prosecuted were void makes California Business & Professions
Code Section 6103 unconstitutional.
Agencies should provide regulated parties (attorneys) fair warning of the
conduct a regulation prohibits or requires. Christopher v SmithKline Beecham, 567
U.S. 142, 156 (2012)
32
However, the California State Bar is not a government agency. It is sui
generis. This court has never determined if an administrative arm of a
Constitutional Court should give administrative notice, meaning fair warning of the
conduct a regulation prohibits or requires. This court should expand upon In re
Ruffalo to find that such fair warning is required under these circumstances, too.
There was no warning here that the State Bar would consider the failure to
pay on a void civil discovery order (attorneys fees
-
not a sanction payable to the
court) would lead to suspension if it went unpaid and not appealed by the attorney.
There was no warning that failing to answer one discrete question by the State Bar
during a time where Petitioner was literally answering dozens of questions and had
produced over 1,000 documents to the State Bar in a handful of investigations it
opened up that she could be considered to have failed to investigate or cooperate
with the State Bar in any manner. Yet this is what happened leading to the
suspension of her license to practice law. Petition for review should be granted. In
reRuffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117 (1968)
The State Bar refused to let Ms. Albert prove that the documents were not
valid orders, considering it irrelevant. [RT 1:118-119] The relevancy of valid vs void
order is an issue of great importance that this Court should determine. By ignoring
the rules set out by the Legislature, the State Bar is demonstrating its contempt for
the real law. Nothing in the charges gave Petitioner notice that the State Bar
would suspend her license for failing to follow a "void" order. The NDC did not
describe the order as void. It was not until after she attempted to submit evidence
33
at trial that the order was void, did the judge rule that it was irrelevant on the
grounds, it made no difference under section 6103 if the order was void or not
-
all
that mattered was that she violated it. If she had known this was the charge before
trial she could have done many things including getting an order expunging the
void orders, or an expert to testify that they were void. In re Ruffalo, 390 U.S. 544,
550, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117 (1968)
The California Legislature declared there could be no valid discovery sanction
order against an attorney if the attorney's name and amount of sanction was not
listed in the Notice of motion and caption. CCP § 2023.040. In re Marriage ofFuller
(1985) 163 CalApp 3d 1070, 1076.
Additionally, the Commissioner who signed the documents thereafter recused
himself for bias making those orders void on an independent basis. Hayward v
Superior Court (2016) 2 Ca]App 5th 10. No one thought those orders were valid until
one day after the State Bar filed its NDC. Then attorney Jennifer Needs filed liens
at the Recorder's office
three and one-half years later
-
-
under the protection of the
State Bar.
By prosecuting Ms. Albert for not obeying orders that the State Legislature
has deemed void or unlawful, the State Bar has usurped the legislative branch in
order to violate Petitioner's due process rights and her right to her license and to
practice in her profession. Fourteenth Amendment to the US Constitution (VIX
Amend US Const Art I) One federal court was able to weigh in on Section 6103
34
finding it is not free from constitutional constraint before losing jurisdiction over
the matter. Canatella vStovitz(ND CA 2005) 365 F. Supp2d 1064, 1073-1074.
The State Bar Court split up §6103 into two parts: (1) violation of a court
order and (2) violation of attorney's oath or duties and disciplined Ms. Albert on the
purported basis it proved by clear and convincing evidence the former. As the
United States Supreme Court noted in the case of Chisom vRoemer, "[it would
distort the plain meaning of the sentence to substitute the word "or" for the word
"and." Such radical surgery would be required to separate the [violation of an order
of the court from the violation of an oath taken]." Chisom v. Roernei; 501 U.S. 380,
397 (U.S. 1991)
Under the State Bar's current construction and application of Cal Bus & Prof
Code §6103, the State Bar can suspend or disbar a member of the State Bar who
overpays a discovery sanction warranting the grant of review.
F. Whether California State Bar's suspension of an attorney's license to practice
law for failure to pay a private third party a debt violates the attorney's Fifth
and Fourteenth Amendment.
This Court has never determined whether a State Bar can act as a debt
collector and suspend a license on the basis that the Bar member failed to pay a
private third party a purported debt that would be dischargeable in bankruptcy.
The creditor was not Petitioner's clients, the court or the State Bar. It was
not a court ordered sanction to punish her. It was an award of attorney fees to the
other side against her and her client jointly and severally at most. The State Bar
came in and started prosecution before litigation had even concluded between the
35
parties who were still on appeal in the main wrongful foreclosure case. The State
has shown a compelling interest in withholding a license for payment of child
support, but this Court has never determined if a license to practice law can be
withheld on the basis that the attorney did not pay what would amount to be an
ordinary creditor. Is the State Bar now some super Debt Collector out there for
anyone who wants payment from an attorney?
G. Whether California State Bar prohibition of allowing lawyers to prove
cooperation with State Bar investigations with evidence of other
simultaneous ongoing investigations makes California Business &
Professions Code Section 6068(i) unconstitutional because it is vague,
uncertain or overbroad.
California State Bar found that Petitioner answered the State Bar but the
answer was inadequate in violation of Bus & Prof Code 6068(i) as to the Sisson
complaint. That was the only charge as to Sisson which was a former client. There
is no substantive requirement in Bus & Prof Code 6068(i). To read a substantive
requirement into the statute would be violating Ms. Albert's Fourteenth
Amendment rights because that was not what was alleged in the NDC. [EX JJ and
YY; RT 1:51; 1:77-80, 921
The Notice of Disciplinary Charges ("NDC") itself was proof that Ms. Albert
was contemporaneously cooperating with the State Bar because it contained
charges from three other State Bar Complaints (2 Koshak; 1 Spinosi) without a
§6068(i) violation charged. In the Matter ofHundin (Review Dept. 1997) 3 Cal State
Bar Ct. Rptr. 657
36
When the California Supreme Court was required to review the State Bar
hearings, it was found that a member's communication with the State Bar on other
matters in the same time frame "constituted contemporaneous cooperation with the
State Bar regarding additional investigative letters subsequently sent to [Ms.
Albert]." In the Matter of Hundin (Review Dept. 1997) 3 Cal State Bar Ct. Rptr.
657.
Petition for review is warranted.
Taking away Ms. Albert's license to practice law was the product of lack of
due process now afforded attorneys caught in California State Bar's disciplinary
system. In re Rose (2000) 22 Cal 4th 430, 459. The purpose of discipline is to
protect the public not castigate it into oblivion. Ms. Albert has done a fine job of
advocating for consumers during her career. See, Lueras v BACHome Loans,
(2013) 221 Ca1App4th 49, Majd vBank ofAmerica, (2015) 243 CalApp4th 1293,
Womack vLovell, (2015) 237 Ca1App4th 772, and Mackovska vBank ofAmerica,
B27180, (8/15/17) unpublished.) She helped to stop foreclosure sales of over 1,000
homes in Yau vDeutsche BankNatl Trust Co. etal(SACV 11-cv-0006-JVS). She
has donated many hours to public service. Ms. Albert was not sanctioned because
she did not uphold high professional standards and competently represent her
clients, she was disciplined because she did not ha ye the economic status to pay a
private third party money that would be deemed dischargeable in bankruptcy.
Respondent and many in her same position like Scheer, Taggart, and
Findley, have a Fourteenth Amendment right regarding their license to practice
37
law. While the Constitution contemplates that democracy is the appropriate
process for change, individuals who are harmed need not await legislative action
before asserting a fundamental right and this Court should use its discretion to
answer these important questions about federal law.
CONCLUSION
The petition for a writ of certiorari should be granted.
Dated: May 15, 2018
Respectfully Submitted,
LAW OFFIC
/s/ Lenore bert
LENORE L.
Petitioner, pro se
ALBERT
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.