Opposition Brief — Lebbos v. Massachusetts State Bar

No. 96-1636 a

tt

Pa

In the

SUPREME COURT OF THE UNITED STATES: Prics

October Term, 1996 re eee

In the Matter of

BETSY WARREN LEBBOS,

Petitioner

BRIEF IN OPPOSITION TO CERTIORARI

Terence M. Troyer

Assistant Bar Counsel

75 Federal Street

Boston, MA 02110

May 14, 1997 (617) 728-8750

QUESTIONS PRESENTED FOR REVIEW

It is the view of the respondent that this case, the

petitioner’s tenth petition for certiorari, presents no federal

questions for review.

The petitioner seeks to challenge various California

Statutes and also the practices and procedures of the State Bar

of California. The “Questions Presented” which appear at

pages 1-11 of her petition are directed to those matters. They

assume the existence of facts which are not reflected in the

record and which the petitioner never explains or justifies.

In any event, California statutes, practices, and

procedures cannot fairly be evaluated by reviewing a decision

of the Supreme Judicial Court of Massachusetts.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE 1

REASONS FOR DENYING THE WRIT 4

| THE PETITIONER’S CURRENT PETITION

DOES NOT PRESENT ANY FEDERAL

QUESTION. 4

ll. THE PETITIONER’S CHALLENGE TO

CALIFORNIA BAR DISCIPLINE

PROCEDURES DOES NOT PRESENTA

CASE OR CONTROVERSY. 7

lil. THE PETITIONER’S CHALLENGE TO HER

MASSACHUSETTS DISBARMENT DOES

NOT PROVIDE A FAIR OPPORTUNITY TO

EVALUATE THE PROPRIETY AND

ACCEPTABILITY OF CALIFORNIA BAR

DISCIPLINE AGENCIES AND

PROCEDURES. 9

CONCLUSION 11

TABLE OF AUTHORITIES

Cases

Lebbos v. Arguellos, 507 U.S. 918 (1993).......c.ccccccseeseseeeeee l

: Lebbos v. San Jose Muni. Ct., 495 U.S. 970 (1990).............. l

: Lebbos v. State Bar, 492 U.S. 935 (1989) ...........cccccecceeseeeeee l

Lebbos v. State Bar, 493 U.S. 1039 (1990) .......... ee. l

2 Lebbos v. State Bar, 493 U.S. 938 (1989) ..........00. eee l

Lebbos v. State Bar, 502 U.S. 989 (1991)... Sot

Lebbos v. State Bar, 53 Cal. 3d 37, 806 P.2d 317, 278

Cal. Rptr. 845, cert. denied 502 U.S. 932 (1991) ..1, 2, 3, 6

| Matter of Lebbos, 10 Mass. Att'y Disc. R. 175 (1994).........3

Matter of Lebbos, 423 Mass. 753, 672 N.E.2d 517

McNamee v. State Bar, 502 U.S. 930 (1991)............. secleieie l

Selling v. Radford, 243 U.S. 46 (1917).......cccccccccccccecccceeceeees 4

Rules

District of Massachusetts Local Rule 83.6........0....0...c.cc0cc00-. 4

First Circuit Rules of Disciplinary Enforcement §

RS ES AISI Sa a ie eS eR a 4

Supreme Judicial Court Rule 4:01, § 16(3) 0.00.0... 4

Statutes

California Business & Prof. Code § 6079.................. a! 6

California Business & Prof. Code § 6084(a) .0.0.000...0..cce.. 6

California Business & Prof. Code § 6086.5.......0000.00.00000000.... 6

Other Authorities

ABA Model Federal Rules of Disciplinary

Neen no ks sbckbvaedssosbinsiasdeccs 4

ABA Model Rules for Lawyer Disciplinary

Enforcement, § 22(D) (1989)..........................cccecccsccescssese. 4

111

No. 96-1636

SSS

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

IN THE MATTER OF BETSY WARREN LEBBOS

BRIEF IN OPPOSITION TO CERTIORARI

STATEMENT OF THE CASE

This is at least the tenth petition for certiorari which the

petitioner has filed following the institution of bar discipline

proceedings against her in the State of California. See

Lebbos v. Arguellos, 507 U.S. 918 (1993); Lebbos v. State

Bar, 502 U.S. 989 (1991); Lebbos v. State Bar, 502 U.S. 932

(1991); McNamee v. State Bar, 502 U.S. 930 (1991); Matter

of Lebbos, 498 U.S. 1040 (1991); Lebbos v. San Jose Mun.

Ct., 495 U.S. 970 (1990); Lebbos v. State Bar, 493 US. 1039

(1990); Lebbos v. State Bar, 493 U.S. 938 (1989): Lebbos v.

State Bar, 492 U.S. 935 (1989).

The petitioner was admitted to the practice of law in both

California and Massachusetts. In 1991, she was disbarred in

California, and certiorari was denied by this court. Lebbos v.

State Bar, 53 Cal. 3d 37, 806 P.2d 317, 278 Cal. Rptr. 845,

cert. denied 502 U.S. 932 (1991). The California Supreme

Court’s action was based on findings that

[The petitioner] commingled client funds;

served on counsel and filed with the court an altered

copy of a court order, with intent to deceive; con-

cealed assets from a judgment creditor; unilaterally

altered and filed as genuine a stipulation; refused to

abide by a court's order recusing itself and lied to a

client with respect to that order; and named a person

as a plaintiff in a lawsuit without the person's

knowledge or consent.

423 Mass. at 754

The decision of the California Supreme Court was

brought to the attention of the Massachusetts Court, which

ordered the petitioner to show cause why she should not be

disbarred in Massachusetts. She responded to the show

cause order by challenging the validity (“existence”) of the

California State Bar Court (See 278 Cal. Rptr. at 848-849),

by asserting that there had been a significant infirmity of

besa.

proof in California, and by arguing that the misconduct does

not warrant similar discipline here. 423 Mass. at 754.

The petitioner’s objections were heard by a single justice

of the Massachusetts Supreme Judicial Court. After hearing,

he entered a reciprocal order of disbarment. Matter of

Lebbos, 10 Mass. Att'y Disc. R. 175 (1994). The petitioner

appealed, and the Supreme Judicial Court affirmed. Matter

of Lebbos, 423 Mass. 753, 672 N.E.2d 517 (1996)

REASONS FOR DENYING THE WRIT

I. THE PETITIONER’S CURRENT

PETITION DOES NOT PRESENT ANY

FEDERAL QUESTION.

By this petition for certiorari, the petitioner seeks review

of the actions of the Supreme Judicial Court of

Massachusetts, not of the actions of the Supreme Court of

California. Indeed, her petition for review of the actions of

the California court has already been denied. Lebbos v. State

Bar, 53 Cal. 3d 37, 806 P.2d 317, 278 Cal. Rptr. 845, cert.

denied 502 U.S. 932 (1991). Nevertheless, she does not

claim that the proceedings in Massachusetts were deficient in

any particular or that she was deprived of any substantial

federal right in Massachusetts. All of her objections are to

the California proceeding.

The Massachusetts proceeding was controlled by

Supreme Judicial Court Rule 4:01, § 16(3). That rule is

substantially identical to the model rules promulgated by the

American Bar Association (ABA Model Rules for Lawyer

Disciplinary Enforcement, § 22(D) (1989); ABA Model

Federal Rules of Disciplinary Enforcement, § II(D) (1978))

which have been widely adopted by both state and federal

courts. See, e.g., First Circuit Rules of Disciplinary

Enforcement § II(D); District of Massachusetts Local Rule

83.6. These rules follow the principles set out by this court

in the leading case of Selling v. Radford, 243 U.S. 46 (1917).

Thus, S.J.C. Rule 4:01, § 16(3), requires the court to

consider four matters before imposing reciprocal discipline.

The court must determine whether

(a) the procedure in the other jurisdiction did not

provide reasonable notice or opportunity to be heard;

(b) there was significant infirmity of proof

establishing the misconduct;

(c) imposition of the same discipline would result in

grave injustice; or

(d) the misconduct established does not justify the

same discipline in this Commonwealth.

The Supreme Judicial Court performed this task and

concluded “that the respondent was given fair notice and an

opportunity to be heard, and that ample evidence was

presented supporting the charges.” 423 Mass at 757. The

Court also held that the misconduct found by the California

Court “obviously and grossly violates the standards of

elementary honesty demanded of an attorney” and is a

sufficient ground for disbarment. 423 Mass. at 758.

This procedure is significantly more restrictive and

exacting than the procedure adopted by this Court. See Sup.

Ct. R. 8(a). It fully comports with all requirements of the

constitution. The petitioner does not advance any argument

to the contrary. In short, there is no suggestion anywhere in

the Petition for Certiorari that the Massachusetts court and

authorities have contravened any of the petitioner’s rights.

Il.

THE PETITIONER’S CHALLENGE TO

CALIFORNIA BAR DISCIPLINE

PROCEDURES DOES NOT PRESENT A

_ CASE OR CONTROVERSY.

Essentially all of the petitioner’s arguments are directed

to the structure of the agencies which administer bar

discipline in California and to the propriety of the procedures

employed by those agencies. But the agencies and

procedures which she challenges do not appear to be those by

which she was disbarred. Rather, she seeks to challenge

amended statutes which went into effect after her offenses

and which are not appiicable to her case.

Petitioner may not attack the current language of

[sections 6084(a), 6086.5, and 6079.1 of the

California Business & Prof. Code], however,

because her disciplinary proceeding did not occur

under their authority. Rather, the disciplinary

proceedings in her case were conducted pursuant to

the State Bar Act as it existed prior to the

amendments enacted by the 1988 Legislature.

Lebbos v. State Bar, 278 Cal. Rptr at 851

The petitioner’s attempt to litigate the constitutionality of

statutes which do not pertain to her case does not present an

Article III case or controversy. U.S. Const., Art. III, Cl. 2.

Whatever objections she has to the “housing, training,

:

providing of all staff, expenses, facilities, pay, expenses, and

benefits” for the California State Bar Court (Pet. pp. 10-11),

she cannot raise them in this case.

Ili. THE PETITIONER’S CHALLENGE TO

HER MASSACHUSETTS DISBARMENT

DOES NOT PROVIDE A FAIR

OPPORTUNITY TO EVALUATE THE

PROPRIETY AND ACCEPTABILITY OF

CALIFORNIA BAR DISCIPLINE

AGENCIES AND PROCEDURES.

The petitioner obviously has long-standing objections to

the agencies and procedures by which bar discipline is

enforced in California. Although her arguments are difficult

to follow, it seems that she is challenging a routine and

unremarkable administrative tribunal established for the

resolution of bar discipline disputes. She appears to make

three claims: First, that the California Supreme Court

appoints employees of the administrative agency (the State

Bar of California, an integrated bar). Second, that one

branch of the administrative agency prosecutes attorneys

while another branch performs the adjudicative functions.

Third, that the judicial branch of the agency is empowered to

assess costs.

Nowhere in the record is there any evidence concerning these

allegations. The petitioner suggests that they are the proper

subject of judicial notice, but she does not explicitly direct

the Court’s attention to statutes which she wants noticed, and

the statutes included in her appendix do not clearly support

her allegations. Further, even if the statutes do establish the

allegations, the impact of the rules on the petitioner’s cases is

purely a matter of conjecture. There is absolutely nothing to

explain why the petitioner would challenge such seemingly

normal and routine rules.

It would be improvident to consider the petitioner’s

arguments in the present case. Not only is the record of the

California proceedings incomplete and inadequate, the

respondents have neither the expertise nor the interest to

defend properly. The respondents are residents and officials

of Massachusetts. They have no familiarity with nor interest

in the statutes of California. If the Court wishes to consider

the propriety of California bar discipline proceedings, it

should do so in a more appropriate case.

May 14, 1997

CONCLUSION

The petition for certiorari should be denied.

Terence M. Troyer

Assistant Bar Counsel

75 Federal Street

Boston, MA 02110

(617) 728-8750