Friday, May 4, 2007
Suit Against State Bar for Online Discipline Summary Held Untimely
By TINA BAY, Staff Writer
An attorney should have known his disciplinary summary was published on the California State Bar’s web site when he saw the print version of it in the organization’s monthly journal, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
On that basis, the court held San Francisco attorney Richard A. Canatella’s civil rights suit against the State Bar and several of its officers was time-barred. U.S. Magistrate Judge Bernard Zimmerman, of the Northern District of California, properly dismissed of the action on statute of limitations grounds, a unanimous panel concluded.
Canatella sued the State Bar in July 2005 alleging the posting of his disciplinary sanctions summary on its web site violated his constitutional rights.
The organization had initiated disciplinary proceedings against the lawyer sometime after 1992, after he had been repeatedly sanctioned in both state and federal courts for filing frivolous actions. Ultimately, the discipline case concluded with Canatella consenting to a 30-day suspension of his license and a probationary period of 18 months.
In February 2000, the California Bar Journal published the summary of Canatella’s case pursuant to state law. The summary appeared in the journal’s print version, which Canatella read.
He allegedly did not discover the information on the State Bar’s web site until later, however.
Constitutional Violations Alleged
Suing under 42 U.S.C. Sec. 1983, Canatella claimed the online publication of his discipline record violated, among other things, his constitutional right to privacy and procedural due process rights. He also asserted the posting violated substantive due process because it was the result of “a conspiracy designed to destroy [his] reputation and ability to…mak[e] a living and…continu[e to]…practice law.”
The attorney sought both damages and an injunction forcing the State Bar to remove the summary from its site.
Zimmerman granted the State Bar’s motion to dismiss on the ground that the one-year limitations period in effect in February 2000 had run on his claims.
The magistrate judge also dismissed similar claims Canatella had brought against San Francisco lawyer Martha Daetwyler, who—while representing a client adverse to Canatella’s in a state probate proceeding—had cited his disciplinary summary in support of a motion to recover court costs. Those claims could not stand based on state action and privilege grounds, Zimmerman ruled.
Canatella appealed the dismissal as to the State Bar.
Writing for the Ninth Circuit, Judge Jay S. Bybee said the statute of limitations was triggered in February 2000.
“Canatella saw the summary he now complains of in the print version of the California Bar Journal in February 2000, and that publication informed—or should have informed—him that the same summary appeared on the internet website per the California Bar’s previously stated policy to post an electronic version of the California Bar Journal on its website,” the judge explained.
But Canatella, based on the idea of “republication,” argued his claims did not arise until after Jan. 1, 2003, when the state Legislature increased the limitations period for Sec. 1983 claims to two years.
First, he contended, the State Bar’s posting of his disciplinary summary on his “member search” page sometime after August 2003 constituted new publication triggering a new cause of action.
Disagreeing, Bybee pointed out that a “verbatim copy” of the summary had appeared “on the exact same website” since February 2000.
Moreover, he said, Canatella’s position undermined the rule that a single publication gives rise to only one cause of action. The purpose of the “single publication rule” is to prevent a multiplicity of lawsuits that could lead to potential harassment, excessive liability, and wasted judicial resources, he explained, concluding:
“Such interests...would hardly be promoted by a rule permitting a new cause of action to arise every time a few characters—due to the continually evolving nature of technology—in a URL address changes, even though the same allegedly defamatory statement continued to appear on the same website.”
Canatella also contended that a new cause of action arose in July 2004 when
Daetwyler republished his disciplinary summary to the court, because the State Bar knew or should have known that she would use the information.
But Bybee responded that the organization “merely posted the allegedly offensive statement on a public website.”
The court also rejected Canatella’s argument that the single publication rule did not apply to him because the State Bar provides his disciplinary record in response to specific inquiries.
The attorney’s record “has consistently been generally available” to the public, Bybee noted.
Under the single publication rule, the judge concluded, the then-one-year limitations period began to run on all of Canatella’s claims in February 2000, and expired “long before” January 1, 2003.
Bybee’s opinion was joined by Judge J. Clifford Wallace and U.S. District Judge Dean D. Pregerson of the Central District of California, sitting on the Ninth Circuit by designation.
Canatella, who was represented on appeal by himself and San Francisco attorney Ronald Toran, told the MetNews only that he was “very disappointed” with the ruling.
R. Scott Erlewine, the State Bar’s appellate counsel, declined comment.
The case is Canatella v. Van de Kamp, 06-15186.
Copyright 2007, Metropolitan News Company