Brotsky v. State Bar of Cal.

• Decision Date: 15 February 1962
• Citation: 57 Cal.2d 287,368 P.2d 697,19 Cal.Rptr. 153
• Parties: , 368 P.2d 697, 94 A.L.R.2d 1310 Allan BROTSKY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. S. F. 20751.
• Court: California Supreme Court

Page 153

19 Cal.Rptr. 153

57 Cal.2d 287, 368 P.2d 697, 94 A.L.R.2d 1310

Allan BROTSKY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S. F. 20751.

Supreme Court of California, In Bank.

Feb. 15, 1962.

Rehearing Denied March 14, 1962.

Charles W. Decker and Benjamin Dreyfus, San Francisco, for petitioner.

Garrett H. Elmore, San Francisco, for respondent.

PER CURIAM.

Allan Brotsky, a member of the State Bar of California and the petitioner herein, brought this proceeding to review certain actions of the Board of Governors and certain interim orders of one of its San Francisco local administrative committees. All of these actions and orders were a portion of State Bar disciplinary proceeding No. S.F. 1881 now pending before the local committee, in which petitioner is respondent.

The two principal questions involved are:

(1) Is review available to petitioner at this stage of the disciplinary proceedings?

(2) Are discovery procedures available to the parties in such a proceeding?

If these two questions are answered in the affirmative, then other questions arise in regard to the nature and extent of the available vehicles of discovery.

The background of the case is as follows:

On November 3, 1960, the committee served Brotsky with a notice to show cause why he should not be disciplined for the solicitation of professional employment by means of a retainer agreement with the Ship Clerk's Local 34, I.L.W.U., with which petitioner, in consideration of a monthly retainer fee, agreed to perform legal services for the client, and also agreed to provide the client's individual members with office consultations on nonunion matters. Specifically, the notice charged Brotsky with breach of rules 2 and 3 of the Rules of Professional Conduct of the State Bar of California. ¹ Those rules are quite lengthy. Summarized, they prohibit solicitation of professional employment by an attorney, acceptance of employment known to have been solicited, and the sharing of compensation for legal services with unlicensed persons, associations or corporations. Insurance companies which have a financial interest in the subject matter, and attorneys retained by them to represent the insured, are specifically exempted from the operation of that portion of rule 3 which prohibits acceptance of professional employment which has been solicited.

Brotsky answered, admitting the terms of the retainer agreement as set forth in the notice to show cause, but asserted that neither that agreement nor his activities thereunder constituted willful solicitation of employment, acceptance of solicited employment, or aiding or abetting an unlicensed organization to practice law. He also urged that, by reason of the statutory exemption of attorneys for insurance companies, and the further fact that the State Bar has authorized or condoned similar practices by the attorneys for other groups and associations, application of rules 2 and 3 to trade unions and their attorneys constitutes a denial of equal protection of the laws. ² By such answer, Brotsky raised the basic issue as to whether the retainer agreement and his activities in regard thereto constituted a breach of the rules, as well as the narrower issue regarding the legality of those rules and their administration by the State Bar. The problems involved in the latter issue grow out of what has come to be known as 'Group Legal Service.' Certainly, we judicially know that there is not a unanimity of opinion on the problems involved in the regulation of such service.

With his answer, Brotksy filed one set of interrogatories directed to the president and Board of Governors of the State Bar, another set of interrogatories directed to the secretary, and two proposed subpoenas duces tecum. The interrogatories directed to the president made reference to a published report of the Board of Governors stating that the findings of a Special Committee on Group Legal Services (Clarence S. Hunt, chairman) revealed that some legal service was being rendered to members of an automobile club by the club's attorneys, and that certain groups, including employees' organizations and apartment house associations, advertise the availability of legal services by staff counsel as an inducement to membership. The interrogatories requested that the president furnish copies of that committee's transcripts of testimony, and other documents constituting the basis of the mentioned report, and also asked if the president had other information concerning the nature and extent of legal services furnished to individual members by the legal staffs of automobile, trade, business or professional associations, cooperatives or corporations. ³

The interrogatory addressed to the secretary of the State Bar asked only whether or not any disciplinary proceedings have been instituted since the dates of and in regard to the matters referred to in certain specified reports of respondent's committees which inquired into group legal services.

The two proposed subpoenas were directed, respectively, to the chairman of one of the aforementioned committees which investigated group legal services, and to the secretary of the State Bar. If issued, those subpoenas would have directed the production, at depositions, of various documents related to both published and unpublished reports of such committees, including minutes, testimony taken, and other material constituting a basis of such reports. In addition, the secretary was requested to produce all documents relating to or used as a basis for the adoption of that portion of rule 3 which exempts attorneys for insurance companies from the ban on accepting solicited legal services when the insurance company has a financial interest in the matter, as well as copies of the so-called 'treaties' which the State Bar has publicly stated to be in existence between that organization on the one hand and insurance companies and automobile associations on the other.

Following these requests, the parties exchanged informal correspondence in which respondent claimed that the discovery statutes were not applicable to State Bar disciplinary proceedings, and also asserted that much of the information sought was privileged. Pointing out that the Rules of Procedure adopted by the Board of Governors provided no definite procedure for obtaining available information, it suggested that a proper method would be to file a written motion, supported by affidavit, with the local administrative committee. In addition, the Board of Governors adopted a resolution expressing its view that neither existing law nor the Rules of Procedure authorized the interrogatories proposed by petitioner; determined that the information sought by both the interrogatories and the depositions was subject to the general principal of confidentiality and privilege; and authorized a subcommittee of the board (named in the resolution) to determine whether limited disclosure could be made without detriment to the public interest, and to take action on such determination.

Petitioner thereupon renewed his requests in the form of a motion (and supporting affidavit) filed with the administrative committee, as suggested by respondent, and added a request that the Bar disclose the information upon which the conclusionary allegations in the notice to show cause were based. The affidavit, among other things, reaffirmed petitioner's defense of alleged discrimination, and pointed out that the materiality of his requests lay not so much in the fact that attorneys representing associations other than trade unions were allowed to continue group legal services, as it lay in the unreasonable classification created by the State Bar's informed acquiescence therein. It also pointed out that since the information requested pertained to the State Bar's knowledge, it could only be obtained from respondent, its officers and committee chairmen.

In reply, respondent filed with the committee a written document entitled '(A) Motion to terminate deposition proceeding. (B) Opposition to application for subpena duces tecum and motion to produce documents and information.' This document was supported by a memorandum of points and authorities, an affidavit of respondent's secretary, and a further resolution of the Board of Governors. These documents constituted a reiteration of respondent's position as set forth in the informal correspondence, together with the further contentions that: (a) section 6052 of the Business and Professions Code, providing that '(d) epositions may be taken and used in the same manner as in civil cases,' became inapplicable to State Bar proceedings on January 1, 1958, when the previously existing code provisions on depositions were superseded by the new discovery statutes; (b) the Board of Governors of the State Bar is entitled to prescribe the rules of procedure governing disciplinary proceedings, and by adopting rule 14 it has limited discovery to the taking of depositions in cases where witnesses will not otherwise be available; (c) the persons from whom petitioner seeks discovery will be available at the hearing before the local administrative committee; ⁴ (d) petitioner's application is indefinite, and fails to show the materiality and relevancy of the matters sought to be discovered; (e) petitioner's request is burdensome and oppressive, in that no central index is kept by the respondent of the particular type of violation referred to in petitioner's application for information, and to answer the same would require a search of all records of disciplinary proceedings which were handled during the years involved; (f) that full transcripts of the proceedings of the Hunt and Sutro investigative committees were not made; (g) that indiscriminate disclosure of complaints and investigation of unauthorized practice would not be in the public interest. The resolution of the board reiterated the confidential nature of the matters sought by ...