‘Private’ Reproval Properly Noted on State Bar Website, C.A. Rules

Tuesday, October 9, 2001

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‘Private’ Reproval Properly Noted on State Bar Website, C.A. Rules

By Kenneth Ofgang Staff Writer/Appellate Courts

The State Bar did not violate a stipulation not to “affirmatively publicize” a member’s reproval when it noted on its website that he “has a public record of discipline,” this district’s Court of Appeal ruled Friday.

Div. Five affirmed Los Angeles Superior Court Judge Madeline Flier’s dismissal of Michael J. Mack’s suit against the State Bar. Mack sought damages and an injunction in 1999 after learning about the reference on his Membership Records Online page.

Mack agreed to the reproval, along with one year of probation, in 1995. He stipulated that if a hearing were held, the State Bar would be able to prove that he persistently failed to return a client’s phone calls, failed to report a $1,500 sanctions order to the State Bar, failed to appear for a jury trial in one criminal case and a preliminary hearing in another, and failed to respond to State Bar investigators’ requests for information.

In mitigation, it was noted that Mack, of Corona del Mar, was a recovering alcoholic and had closed his office, limiting his practice to appearances for other lawyers.

A standard-form attachment to the stipulation provided:

“The parties understand that although this reproval is termed ‘private,’ it arises in a public proceeding. Although the State Bar of California will not affirmatively provide any publicity to the disposition, the file, including the stipulation, [and] any order approving it, in this case will remain public and will be available on any specific inquiry by a member of the public.”

‘Technological Means’

Mack’s understanding, he said in his complaint against the State Bar, was that disclosure of the reproval would be limited “to those few individuals telephoning the State Bar specifically to inquire about his private reproval.” Instead, he alleged, the State Bar has publicized his reproval “through the utilization of the greatest techonological means possible.”

But Los Angeles Superior Court Judge Thomas Willhite, writing Friday on assignment to the Court of Appeal, said Mack’s argument was inconsistent with the public policy favoring access to records of state agencies.

While the State Bar, as an arm of the courts, may not be covered by the California Public Records Act, the jurist said, “both decisional law and state and federal constitutional principles have established a powerful public right of access to [court] records.”

Mack, Willhite said, was making “a Luddite’s argument: The State Bar should not use the internet to provide public access to his record of discipline because it will now be too readily available.”

Terms of Stipulation

But Mack acknowledged that information about the reproval could be made available by telephone, pursuant to the terms of the stipulation, the jurist pointed out. And Willhite insisted that disclosure over the Internet was no different.

“Use of the internet to search out a lawyer’s membership records and examine his public record of discipline might be easier and it might be faster than use of the telephone, but it is fundamentally no different,” he wrote.

Willhite continued:

“The information exchange takes place between computer systems, but still passes over phone lines. In order to obtain the information, the inquiring party must specifically ask for membership information about a particular member. In response, the information is provided, albeit cybernetically.”

Even if Mack didn’t contemplate disclosure over the Internet, Willhite said, he did know that information was going to be made public. “He could not reasonably expect that the methods available for gaining access to his records would remain frozen in amber, unaffected by new technologies,” the jurist wrote.