Tuesday, January 31, 2006
Ex-Lawyer May Not Practice Before Administrative Bodies—C.A.
By a MetNews Staff Writer
A lawyer who resigns with disciplinary charges pending may not represent clients in state administrative proceedings, even if laypersons who have never been admitted to law practice may lawfully do so, the Court of Appeal ruled yesterday.
It left open the question of whether “true laypeople” do have that prerogative.
The Fourth District’s Div. Three, in an opinion by Justice Raymond Ikola, denied a writ petition filed by former San Juan Capistrano attorney Charles F. Benninghoff III to the extent it challenged the State Bar’s right to take over his lay law practice before state administrative tribunals. The petition was granted insofar as Benninghoff sought to force the State Bar to unhand his federal practice.
Yesterday’s opinion was the first published decision dealing with Business and Professions Code Sec. 6180, enacted in 1974. It provides:
“When an attorney engaged in law practice in this state dies, resigns, becomes an inactive member of the State Bar, is disbarred, or is suspended from the active practice of law and is required by the order of suspension to give notice of the suspension, notice of cessation of law practice shall be given and the courts of this state shall have jurisdiction, as provided in this article.”
That section, Ikola said, entitles the State Bar to assume control of the state practice of Benninghoff, who resigned from the State Bar on Sept. 18, 1999, following his federal convictions relating to a conspiracy to defraud the government and making false financial statements. However, it does not create jurisdiction over his federal practice, the jurist said, because “state law cannot restrict the right of federal courts and agencies to control who practices before them.”
The appeals court rejected Benninghoff’s premise that if laypersons may represent others before state administrative agencies, he, now being a layperson, may permissibly do so. Ikola said it wasn’t necessary to decide whether provisions of the Administrative Procedure Act do authorize lay representation since the “specific question” before the court was whether Benninghoff may do so.
“Our specific question arises because Benninghoff is not the typical layperson — he used to be lawyer. The statute prohibiting the unauthorized practice of law treats true laypeople differently than lawyers who have lost their bar membership. [Business and Professions Code] Section 6126, subdivision (a) addresses true laypeople. It provides that ‘[A]ny person...practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor.’ (Italics added.) Section 6126, subdivision (b) addresses lawyers like Benninghoff. It provides that ‘[a]ny person who...has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law...is guilty of a crime punishable by imprisonment in the state prison or county jail.’ Thus, a true layperson may practice law when ‘authorized pursuant to statute or court rule’; a defrocked lawyer like Benninghoff may not practice law at all. (§ 6126, subds. (a) & (b).)”
Noting that Benninghoff was convicted of four federal felonies involving moral turpitude, Ikola said that barring him from representing clients is in the public’s interest. He wrote:
“Benninghoff avoided the indignity of actual disbarment only by resigning from the State Bar with disciplinary charges pending. Nonetheless, he suffers the same disqualifications as a bar member who has been tried on disciplinary charges and found wanting....He is unfit to practice law; he has forfeited the privilege of speaking for others under the law.”
Benninghoff, who was both a lawyer and a certified public accountant, was convicted along with his wife, Nancy Benninghoff, in connection with false statements made to three federally insured banks in Orange County between 1989 and 1994. He was tried before United States District Judge Manuel Real of the Central District of California.
Real found that Benninghoff was “an organizer, leader, manager or supervisor” in the conspiracy.
Benninghoff, who received both his undergraduate and law degree from USC, was admitted to law practice in 1975.
The case is Benninghoff v. Superior Court, G035923. At oral argument on Jan. 23, James S. Link represented Benninghoff and Mark Torres-Gil of the Office of Chief Trial Counsel presented the State Bar’s views.
Copyright 2006, Metropolitan News Company