Thursday, February 25, 2010
C.A.: Bar Group Can Refuse to Sell Member List to Ex-Lawyer
By KENNETH OFGANG, Staff Writer
The San Fernando Valley Bar Association did not violate the unfair competition law by refusing to sell its membership list to a disbarred attorney who wanted to solicit business as a mediator, this district’s Court of Appeal ruled yesterday.
The plaintiff, Joel Drum, alleged that he intended offer his services at lower cost than other mediators to whom the SFVBA had sold the list. But he did not allege that the group was trying to protect itself from competition or that consumers would be harmed if Drum could not access the list, Justice Richard Mosk wrote for Div. Five.
The association, Mosk added, “reasonably contends that its refusal to facilitate a disbarred lawyer’s efforts to solicit its members is consistent with its objective of enhancing community respect for the law.”
Drum, who practiced with Davis & Drum in Sherman Oaks, represented a number of insurance companies, including Northbrook Property & Casualty Company, Farmers Insurance Exchange, and Midland Risk Insurance Company. He was placed on probation, with actual suspension for a minimum of three years, in 2005 for refusing to return hundreds of client files after two of the insurance companies fired him, and other misconduct, State Bar records show.
He never regained the right to practice, however, because he was disbarred in 2008 for failing to comply with terms of his probation and the suspension order.
In his complaint against the SFVBA, he contended that the group was using his disbarment as a pretext for protecting members who were mediators from price competition. The association demurred; Los Angeles Superior Court Judge James A. Kaddo sustained the demurrer with leave to amend, but Drum did not amend and the case was dismissed.
Mosk, writing for the Court of Appeal, said Drum failed to state a cause of action. “A voluntary bar association’s unilateral refusal to sell its membership list to any particular buyer, even if the association’s reason was to protect some of its members from price competition, is not an ‘unlawful, unfair or fraudulent business act or practice’ under the UCL,” the justice said.
There was, Mosk elaborated, no allegation that the SFVBA “entered into any agreement, combination or conspiracy to fix prices for mediation services,” or “that the Association has imposed any price controls on its members, or that the Association’s members have abided by such price controls, or that plaintiff was a member of the Association or otherwise was competitively disadvantaged by any such price controls.”
Nor, Mosk continued, was there an allegation that the association controlled, or conspired to control, the availability of mediation services in the San Fernando Valley, or that consumers of such services were being harmed by its refusal to sell its mailing list to a disbarred lawyer.
Drum represented himself on appeal, while Jonathan B. Cole and Mark Schaeffer of Nemecek & Cole represented the SFVBA.
The case is Drum v. San Fernando Valley Bar Association, 10 S.O.S. 937.
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