Tuesday, October 31, 2017
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Ninth Circuit:
Disbarred Lawyer’s Equal Protection Claim Unreviewable
Won’t Decide Constitutionality of State Bar Rule Requiring Those Seeking Reinstatement to Have Passed Attorneys Exam More Recently if They Were Mustered Out Forcibly Than if They Withrew Voluntarily
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has declined to consider the merits of a plaintiff’s contention that the State Bar denies equal protection by requiring disbarred lawyers, such as he, who seek reinstatement to have passed an attorney’s examination within three years before applying to get their bar licenses back, while allotting a five year period to those who withdrew without disciplinary charges pending.
The plaintiff is Joseph L. Shalant of Pacific Palisades, whose disbarment was ordered by the California Supreme Court on Dec. 14, 2005, effective Jan. 13, 2006.
A three judge panel’s memorandum opinion, filed Friday, said:
“The district court properly dismissed Shalant’s action as barred by the doctrine of res judicata because Shalant’s equal protection claim was raised in a prior California State Bar Court proceeding that resulted in a final judgment on the merits.”
The decision, in Shalant v. State Bar of California, 17-55050, affirms the dismissal of Shalant’s civil rights action under 42 U.S.C. §1983.
Three Efforts
Shalant made three efforts in the State Bar Court to be relieved of the requirement of having passed the attorney exam within the previous three years in order to seek reinstatement, arguing each time that State Bar rule 5.441(B)(3) discriminates unconstitutionally against lawyers who are in the “class” of those who lost the right to practice through disbarment or who resigned with charges pending.
Were the five-year requirement applied to him, he could have met it. He passed the attorneys exam—the same one given to out-of-state lawyers who seek admission here—but he encountered a roadblock.
His application was considered and denied on May 16, 2014 because—in addition to fresh misconduct—he had not made restitution. He had done so by the time he filed a petition for reinstatement on Dec. 2, 2015, but by then, more than three years had elapsed from the exam.
State Bar Court Hearing Judge Lucy Armendariz, rejecting his equal protection argument, dismissed the petition. Pressing his contention, Shalant sought reconsideration, which Armendariz denied on Jan. 15, 2016.
He did not seek review in the State Bar Court Review Department or in the California Supreme Court, resulting in her order becoming final. Instead, Shalant filed his federal action against the State Bar, Armendariz, and others.
Preclusive Effect
After doing that, Shalant filed a new petition in the State Bar based on an equal protection claim, which State Bar Court Judge W. Kearse McGill dismissed on June 28, 2016. McGill said it was necessary to “give preclusive effect” to Armendariz’s order because “[t]o do otherwise would permit petitioner to collaterally attack a final and binding court order.”
United States Magistrate Judge Paul L. Abrams, in his Oct. 5, 2016 report and recommendation calling for dismissal of Shalant’s federal action, also saw Armendariz’s order as deserving of deference. He cited the Ninth Circuit’s 1999 decision in Wehrli v. County of Orange for the proposition that administrative decisions are to be given preclusive effect “where judicial review of the administrative adjudication was available but unused.”
That case was also cited by the Ninth Circuit in affirming the dismissal by Senior District Court Judge Valerie Baker Fairbank of the Central District of California, who on Dec. 29, 2013, adopted the report and recommendations by Abrams. She remarked that Shalant’s objections to what Abrams put forth “are plainly unavailing.”
2014 Denial
Even if Armendariz had considered the Dec. 2, 2015 petition on its merits, Shalant would have to have shown why there should be a different result from that reached by the State Bar Court Review Department on May 16, 2014. Aside from finding a procedural impediment to reinstatement—the failure to make restitution—it noted that the administrative law judge “specifically found that Shalant refused to accept responsibility for past wrongdoing” and “committed additional misconduct after his disbarment, including violating an order that designated him as a vexatious litigant.”
The opinion, by Judge (now Presiding Judge) Catherine D. Purcell, recites:
“Shalant has amassed a record of five disciplinary cases, stipulating to the misconduct in two. He has been involved in the State Bar’s disciplinary process for 28 of his 38 years of practice. His misconduct adversely affected 15 clients in ten separate matters.”
Instances of Misconduct
Purcell also wrote:
“[H]e committed serious misconduct by filing a false declaration in 2006, violating a spousal support order and a vexatious litigant prefiling order in 2009, and commingling funds and making misleading disclosures in his current petition for reinstatement in 2013. We find that Shalant has failed to establish exemplary conduct for any length of time.
“Shalant’s contention that there is no factual support to believe he would commit future misconduct wholly ignores the record. He did not establish his remorse, failed to display respect to the courts, and refuses to accept culpability in three of his five disciplinary matters. Rather than learn from his past misdeeds, he continues to repeat them, as evidenced by his post-disbarment misconduct. Shalant poses a grave risk of future misconduct if reinstated.”
Contests Fee Determination
The decision Friday was not the first time there was an appellate court determination that Shalant was seeking an adjudication of something that had already been decided.
On May 18, 2005, the Review Department of the State Bar Court found that Shalant had charged an excessive fee. He entered into a contract with a client in a medical malpractice action providing for a contingency fee, in accordance with the limits set forth in the Medical Injury Compensation Reform Act (“MICRA”), but later demanded a $25,000 nonrefundable retainer, on the threat of leaving the case if he didn’t get it, and he got it.
The Review Department said this fee ran afoul of Business & Professions Code §6146, a part of MICRA. It declared:
“That section specifies the maximum fees to which an attorney is entitled under a medical malpractice contingent fee agreement depending on the amount recovered, and we hold that an attorney cannot evade the limitations of that section by contracting for a non-refundable minimum fee or a flat fee in addition to the statutory maximum contingent fee. Such a contract provides for a total fee in excess of the statutory maximum.”
The Supreme Court, in ordering disbarment of Shalant, accepted the Review Department’s findings.
On March 23, 2010, Shalant filed a petition for writ of mandate in the Los Angeles Superior Court contesting a determination by the State Bar’s Client Security Fund that the former client was entitled to a refund of the $25,000. The writ was denied and Shalant appealed.
Issue Was Included
Writing for Div. Seven of this district’s Court of Appeal, Presiding Justice Dennis Perluss said in a Jan 30, 2012 unpublished opinion:
“Whether the fee agreement violated MICRA was an issue necessarily decided in the disciplinary proceedings before the State Bar. The Supreme Court’s summary denial of Shalant’s petition for review of the State Bar Review Department’s decision recommending his disbarment constituted a final judicial decision as to the issues raised in that proceeding, which included the legality of the fee agreement under MICRA….
“Necessarily, therefore, in upholding the State Bar Review Department’s recommendation of disbarment, the Supreme Court made a final judicial determination of the illegality of the fee agreement, at least with respect to Shalant, which precludes Shalant from now relitigating the issue.”
On the heels of his disbarment, Shalant sued the former client for more money, on a quantum meruit theory. Los Angeles Superior Court Judge Rita J. Miller sustained demurrers without leave to amend on the ground that the action was time-barred, and Shalant appealed from the ensuing judgment of dismissal.
Div. Four of this district’s Court of Appeal affirmed, in an unpublished opinion, on March 19, 2008.
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