Friday, September 19, 2008
Attorney Asks Bar Court to Dismiss Proceeding as ‘SLAPP’
By KENNETH OFGANG, Staff Writer
A prominent attorney facing possible disbarment is asking the State Bar Court to dismiss the proceedings and reinstate his right to practice under the state’s anti-SLAPP law.
Richard Fine acknowledged in his motion, dated Wednesday, that Code of Civil Procedure Sec. 425.16 normally applies in courts of record, a classification that does not include the State Bar Court.
But nothing in the law specifically exempts attorney disciplinary proceedings, he argued, adding that the right to bring an anti-SLAPP motion should be recognized under Business and Professions Code Sec. 6085.
That section provides in part that an attorney who is subject to a State Bar Court proceeding “shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right...[t]o exercise any right guaranteed by the California Constitution or the United States Constitution.”
State Bar Court Hearing Judge Richard Honn recommended last October that Fine lose his license as a consequence of his “improper and vindictive reactions” to rulings of Los Angeles Superior Court Commissioner Bruce Mitchell and other judicial officers.
Honn ordered that Fine, a Beverly Hills lawyer who has been a member of the State Bar since 1973, be placed on involuntary inactive status. The State Bar’s Web site says that Fine has been ineligible to practice law since Oct. 17 of last year, although Fine has claimed that he is eligible to practice because the state Supreme Court has not ordered otherwise.
Fine claims that all of his actions were proper, that Mitchell and other judicial officers acted without jurisdiction, and that counsel for the State Bar is retaliating against him for constitutionally protected activities. Those activities, he has argued, including his efforts to eliminate “local judicial benefits” that Los Angeles County pays Superior Court judges—on top of their state salaries—and in the interim to prevent judges who are receiving the benefits from hearing cases to which the county is a party.
The case is pending in the Review Department, which heard oral argument in June, during which Fine argued that his persistent criticisms of judicial officers, voiced in repeated pleadings and motions in state and federal courts, cannot be the basis of judicial discipline.
The State Bar’s counsel, Kevin Taylor, argued there was no attempt to curtail Fine’s free speech rights.
“This is not a First Amendment case,” Taylor told the review panel. “This is not about the things that were said. It’s about the things that were done.”
Fine, he said, “wasted valuable court time” by filing frivolous suits and making “bold assertions that were rejected by the courts.”
But Fine argued in his latest motion that his filing of court documents is a protected activity to which Sec. 425.16 applies.
“The State Bar’s case is based entirely and solely on the pleading filed in cases before federal and state courts of record,” he argued. “The State Bar has admitted at oral argument that the ‘conduct’ of Respondent for which it is prosecuting Respondent is the ‘filing of those actions.’”
The court’s rules give State Bar counsel 10 days to respond to the motion.
The case is Matter of Fine, 04-14366-RAH.
Copyright 2008, Metropolitan News Company