Monday, April 2, 2018
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Court of Appeal:
S.C. Does Not Abridge Rights in Adopting Bar Discipline
Says High Court May Ratify State Bar Recommendations Without Granting a Hearing Or Stating Its Reasons in Writing, Rejecting Contentions of Suspended Lawyer
By a MetNews Staff Writer
A suspended Los Angeles attorney has been rebuffed by the Court of Appeal in her effort to have it declare that the California Supreme Court abridged her constitutional rights.
Presiding Justice Frances Rothschild of Div. One expressed “grave doubts” as to her panel having the “authority” to deal with the assault by attorney Marilyn S. Scheer on the high court’s actions. It nonetheless proceeds to do so, finding no flaw in the procedures.
In particular, Scheer faults the Supreme Court for giving effect to a 2014 State Bar disciplinary order without hearing her side of the story, in violation of due process and other rights, and without observing the state constitutional mandate that appellate decision that “determine causes shall be in writing with reasons stated.”
The high court acted pursuant to California Rules of Court, rule 9.16(b) which provides:
“Denial of review of a decision of the State Bar Court is a final judicial determination on the merits and the recommendation of the State Bar Court will be filed as an order of the Supreme Court.”
Must Refund $120,000
The 2014 order was that Scheer be suspended from law practice for a minimum of two years, with the suspension to remain in effect until she refunds more than $120,000 directly to clients she represented in loan modification efforts, or to the State Bar’s Client Security Fund (“CSF”) as to moneys it has paid out.
The clients are 26 residents of 11 states where Scheer was not licensed to practice. Too, she accepted fees before the loan modification services had been completed, in derogation of Civil Code §2944.7(a)(1).
Directly before the Court of Appeal was Scheer ’s appeal from Los Angeles Superior Court Judge James C. Chalfant’s denial of a writ of mandate challenging three reimbursement orders to Scheer based on 30 payments from the Client Security Fund to Scheer ’s former clients.
“[T]o the extent Scheer challenges the State Bar’s disciplinary cases against her,” Rothschild wrote in an unpublished opinion filed Thursday, “those cases are the subject of an order of the Supreme Court, which we may not overrule.”
Can’t Contradict S.C.
She went on to say:
“Scheer’s challenges to rule 9.16 argue essentially that CSF’s decisions to reimburse Scheer’s clients are invalid because the procedure by which she was found culpable in the prior disciplinary proceedings was itself invalid. In other words, she seeks to relitigate her disciplinary proceedings, which ended in the Supreme Court’s denial of her petition for review. That denial ‘is a final judicial determination on the merits and the recommendation of the State Bar Court [has been] filed as an order of the Supreme Court.’…Apart from any issues of res judicata or collateral estoppel (which we need not decide), we may not overturn an order of a court of superior jurisdiction.”
Addressing Scheer’s contention that rule 9.16 abridges the right to petition for redress of grievances, Rothschild said:
“Scheer is correct that the First Amendment protects citizens’ access to the courts. But rule 9.16 does not deprive attorneys of that right. Under the rule, an attorney may petition for review from the Supreme Court….”
She quoted the California Supreme Court as saying in its 2000 decision in In re Rose:
“[W]hen an attorney petitions for review of a State Bar Court decision recommending disbarment or suspension, we thoroughly review the attorney’s contentions and the entire record, and reach an independent determination whether he or she should be disciplined as recommended.”
That opinion, she said, disposes of Sheer’s due process arguments.
Equal Protection
Scheer also contended that lawyers are denied equal protection because they are the only licensed professionals in California who are not entitled to judicial review of administrative actions against them. In answering that, Rothschild quoted Circuit Judge Marsha Berzon in saying, in the Ninth Circuit’s 2016 opinion in Scheer v. Kelly:
“Scheer has not identified a First Amendment right burdened by these regulations, so the proper level of scrutiny to apply is rational basis review….The regulatory scheme survives this review because the historically unique role of lawyers allows states to treat legal practice differently from other professions.”
Lawyers, Berzon said, are customarily regarded as officers of the court. She continued:
“Given both this particular function of lawyers and the tradition of state court regulation of lawyers, California/s decision to regulate lawyers principally via a judicially supervised administrative body attached to the State Bar of California, the organization of all state-licensed lawyers, is rational and so constitutional.”
Rothschild’s opinion also rejects Scheer’s contention that the reimbursement orders are invalid because the commission overseeing the fund did permit oral argument by her.
Scheer commented on Friday:
“The Court dodged the issue of the constitutionality of Cal. R. Ct. 9.16, which states that a denial of judicial review is review. It is an oxymoron and a violation of the petitions clause (access to the courts) of the First Amendment to the U.S. Constitution. Attorneys are the only licensed professionals in the state who can have their licenses suspended by agency action alone, without access to an independent true court. The California Supreme Court is the only true court available to attorneys in this state and the California Supreme Court has not accepted an attorney’s petition for review of State Bar court (agency) action in more than 18 years. But I will continue to challenge Cal. R. Ct. 9.16 in any forum available to me; I am sure most attorneys are not aware of this process—it allows the State Bar and State Bar court almost unlimited power without regard to due process. The Constitution as the supreme law of the land has been ignored.”
The case is Scheer v. California Client Security Fund, B281926.
On Sept. 28, 2016, Scheer was found by the State Bar Court Review Department to have four clients in other states it didn’t know about previously. It recommended no additional discipline, saying:
“To be clear, we do not discount that we now have proof that Scheer’s misconduct involved more clients than we realized when determining the discipline in Scheer I….That Scheer committed identical misconduct with four additional clients would not have caused us to recommend a more severe sanction in Scheer I.”
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