Thursday, June 13, 2002
Ninth Circuit Panel Reinstates San Francisco Lawyer’s Vagueness Challenge to Attorney Discipline Rules
By a MetNews Staff Writer
A San Francisco lawyer’s suit against the State Bar, alleging that a number of statutory provisions and rules on attorney discipline are unconstitutionally vague, was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.
The panel ruling, which involved procedural issues and expressed no view on the merits of Richard A. Canatella’s claims, will give the 30-year practitioner the opportunity to attack a suspension based on more than 20 incidents in which he was sanctioned by state and federal courts for violating those rules.
Canatella filed for bankruptcy in 1997, after having paid about $100,000 in sanctions over a 10-year period. The sanctions resulted from his representation of a woman who filed multiple lawsuits after winning appellate reversal of her conviction on murder charges, of two defendants in a series of collection actions, and of himself in a collection suit by a court reporter.
The sanctions orders triggered a State Bar investigation beginning in 1992. Canatella’s federal court action seeking to block the investigation was dismissed under the abstention doctrine generally barring federal court interference with ongoing state judicial or administrative proceedings.
While his appeal of that ruling was pending, Canatella agreed to resolve the State Bar charges by stipulating to an 18-month stayed suspension, with 18 months’ probation and 30 days of actual suspension. The Ninth Circuit later ruled that the stipulation mooted his appeal and dismissed it.
But Canatella filed a new federal civil rights action two years ago, seeking an injunction against further discipline based on the allegedly unconstitutional provisions of Business and Professions Code Secs. 6068(c); 6068(g); 6103; and 6106 and Rule 3-200 of the Rules of Professional Conduct.
Those provisions provide, among other things, that a lawyer must not “encourage either the commencement or the continuance of an action or proceeding from any corrupt Motive;” willfully disobey “an order of the court requiring him to do an act connected with or in the course of his profession;” commit “any act involving moral turpitude, dishonesty, or corruption,” regardless of whether related to the practice of law; or “seek, accept, or continue employment if the member knows or should know that the objective of such employment” is not warranted under existing law or “a good faith argument for an extension, modification, or reversal of such existing law.”
U.S. District Judge Martin Jenkins of the Northern District of California ruled that the claims were still subject to abstention and dismissed.
But Judge Michael Daly Hawkins concluded that Canatella’s claims are ripe for adjudication because he has completed probation and no State Bar proceedings are pending.
He rejected the State Bar’s argument that because Canatella had reported a sanction imposed by a magistrate judge prior to filing his second suit, there is a new “ongoing proceeding” subject to abstention. But in the absence of state law guidance, Hawkins said, the Ninth Circuit will consider an administrative proceeding to be ongoing only from the point at which a formal accusation is filed.
The appellate jurist also rejected Jenkins’ conclusion that Canatella lacks standing because he is in no imminent danger of harm resulting from action that the State Bar might take under the challenged rules.
Since Canatella “has nowhere conceded that he will refrain from the type of expression that he believes is constitutionally protected,” and the State Bar has not conceded that it will not discipline Canatella if he is again sanctioned for violating those rules, the attorney and the regulators are “philosophically on a collision course” that makes the issues appropriate for judicial resolution, Hawkins said.
The case is Canatella v. State of California, 00-16782.
Copyright 2002, Metropolitan News Company