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Court of Appeal:
Inactive Licensees Validly Barred From Handling ADR
State Bar Rule Does Not Offend Equal Protection Though Non-Attorneys May Be Arbitrators, Mediators—Justices
By a MetNews Staff Writer
A State Bar rule that prohibits inactive licensees from acting as mediators and arbitrators—while non-attorneys may do so—does not violate the equal protection clauses of the state or federal constitutions, Div. Four of this district’s Court of Appeal held Thursday.
Justice Audra Mori has authored opinion. It affirms a judgment of dismissal that followed Los Angeles Superior Court Judge Jill T. Feeney’s sustaining of demurrers, without leave to amend, to a complaint filed by attorney Morris S. Getzels, 73, who says he wants to go on inactive status but can’t because he wants to continue arbitrating and mediating cases.
Impeding him is State Bar Rule 2.30. The paragraphs he alleges to be unconstitutional are these:
“(B) No licensee practicing law, or occupying a position in the employ of or rendering any legal service for an active licensee, or occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law, shall be enrolled as an inactive licensee.
:(C) Notwithstanding (A) and (B) a licensee serving for a court or any other governmental agency as a referee, hearing officer, court commissioner, temporary judge, arbitrator, mediator or in another similar capacity is eligible for enrollment as an inactive licensee if he or she does not otherwise engage in any of the activities listed in (B) or hold himself or herself out as being entitled to practice law.”
Getzels’s Contention
Getzels argues in his opening brief on appeal, prepared by West Los Angeles attorney Leonard Steiner of Steiner & Libo:
“Indeed, it appears that inactive licensees of the State Bar are the only persons in a world population of more than eight billion (8,000,000,000) persons who are prohibited from acting as arbitrators or mediators in California. Included within the categories of persons who may act as California arbitrators or mediators, i.e., the rest of the world other than inactive licensees, are convicted murderers (including mass murderers), pedophiles, fraudsters, minors, adjudicated mental incompetents, and disbarred and suspended attorneys.”
The brief continues:
“The State Bar does not contend that acting as an arbitrator or mediator constitutes the practice of law….Nevertheless, the State Bar asserts, and the trial court agreed, that there is a rational bases for Rule 2.30(B) and (C) because of the State Bar’s mere unsubstantiated fear that having inactive licensees act as arbitrators or mediators might place burdens on the State Bar’s regulatory jurisdiction because of the supposed possibility, but not the actuality, of complaints being made to the State Bar’s discipline office as a result of inactive licensees acting as arbitrators or mediators….But as the United States Supreme Court has held, mere unsubstantiated fear of something happening in the future does not satisfy the rational basis test.”
For that proposition, he cited the 1985 decision in City of Cleburne v. Cleburne Living Center.
Mori’s Opinion
Agreeing with Feeney, Mori wrote:
“California has a legitimate interest in maintaining a competent bar and assuring the professional conduct of licensees….Rule 2.30’s distinction between licensees who engage in conduct considered closely related to the practice of law and those who distance themselves from such conduct bears a rational relationship to the goal of assuring the professional conduct of licensees.
“The State Bar could rationally conclude that an inactive licensee ‘occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law’…would burden its regulatory system….The State Bar could receive complaints about attorneys serving as arbitrators or mediators and would need to assess and respond to them. Getzels does not dispute that inactive licensees remain subject to the State Bar’s jurisdiction and to discipline for misconduct. It is rational to conclude that licensees who act as private arbitrators and mediators should be required to continue paying active annual licensee fees, whereas those who have distanced themselves from the practice of law should not.”
1985 Decision Inapposite
Differentiating City of Cleburne, she said the nation’s high court in that case struck down an ordinance that was based on “an irrational prejudice against persons with mental disabilities, not a legitimate state interest.” She remarked:
“In this case, Getzels does not argue that the State Bar was motivated by such a prejudice. The State Bar was motivated by concerns that complaints about licensees might burden its regulatory system, and such concerns need not be empirically substantiated.”
Rejecting Getzels’s insistence that strict scrutiny should be applied, Mori said:
“…Getzels does not show that rule 2.30 involves a suspect class or interferes with a fundamental constitutional right. Thus, the rational basis test governs our consideration of Getzels’s equal protection claim, which concerns the regulation of professional conduct.”
The case is Getzels v. State Bar of California, B338089.
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