Goldstein v. State Bar, No. S006541

CourtUnited States State Supreme Court (California)
Citation47 Cal.3d 937,254 Cal.Rptr. 794
Docket NumberNo. S006541
Decision Date26 January 1989
Parties, 766 P.2d 560 Marc L. GOLDSTEIN, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 794

254 Cal.Rptr. 794
47 Cal.3d 937, 766 P.2d 560
Marc L. GOLDSTEIN, Petitioner,
v.
The STATE BAR OF CALIFORNIA, Respondent.
No. S006541.
Supreme Court of California,
In Bank.
Jan. 26, 1989.
Rehearing Denied March 22, 1989.

[47 Cal.3d 939]

Page 795

[766 P.2d 561] David A. Clare and Arthur L. Margolis, Los Angeles, for petitioner.

Diane C. Yu, Oakland, Truitt A. Richey, Jr., Major Williams, Jr., San Francisco, and Thomas J. Kelley, Los Angeles, for respondent.

BY THE COURT:

On December 10, 1985, this court issued an order admitting a list of persons, including petitioner, to the practice of law in California. On February 13, 1986, the Committee of Bar Examiners moved the court to delete petitioner's name from the list, nunc pro tunc, on the ground [47 Cal.3d 940] that petitioner was ineligible to apply for such admission. In order to obtain further information regarding the circumstances surrounding petitioner's admission, we denied the motion without prejudice and referred the matter to the State Bar "for hearing, report and recommendation as to whether Marc L. Goldstein has committed misconduct warranting discipline."

Following a hearing before the State Bar Court, the hearing panel (one referee) filed an opinion on August 13, 1987, concluding that petitioner committed acts warranting discipline, and recommending that this court refer the matter back to the hearing panel for a determination as to the level of discipline to be imposed. Both petitioner and the State Bar filed requests for review with the Review Department of the State Bar Court.

On February 25, 1988, the review department unanimously determined that petitioner committed misconduct which misled the Committee of Bar Examiners to certify him to practice without a full assessment of his moral character, and recommended that this court either vacate its order admitting petitioner to the practice of law or re-refer the matter to the State Bar for a determination of the appropriate discipline to be imposed. Petitioner sought review of this determination; we construed the review department's recommendation as a renewal of its motion to delete petitioner's name from the list of those admitted to the State Bar, and issued a writ of review. We now adopt the review department's findings of fact, and order defendant's name stricken from the roll of attorneys.

FACTS

In February 1979, petitioner took and passed the California bar examination. His certificate for admission, however, was delayed pending a moral character investigation. In July 1982, following a lengthy hearing, a hearing panel of the State Bar Court recommended that petitioner's certificate for admission be denied on the ground

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that he did not possess the requisite moral character. This recommendation was based on findings that petitioner: (1) deliberately[766 P.2d 562] abused the judicial process by filing numerous actions to harass tradespeople and others with whom he had petty disputes and to obtain nuisance settlements to which he was not entitled; (2) knowingly made false statements under oath to advance his interests in the course of several of his lawsuits; (3) engaged on several occasions in the unauthorized practice of law; and (4) committed acts of fraud against various entities, including the filing of a false claim for reimbursement for "lost" money orders which were not in fact lost, making knowingly false statements on an application to practice law in Georgia, filing claims for lost baggage against several airlines which either falsely stated that the baggage was lost or [47 Cal.3d 941] greatly exaggerated the value of the items lost, making false statements on a credit application, and engaging in a check-kiting scheme.

On January 19, 1983, following a further hearing at which petitioner testified, the Committee of Bar Examiners adopted the findings of the hearing panel and denied petitioner certification to practice law in the State of California. The committee further ruled that "[p]ursuant to Rule X, Section 104(a) [of the Rules of the State Bar Regulating Admission to Practice Law in California] the period when another application may be filed is extended to three years from the date of denial of the application." 1 Petitioner unsuccessfully sought review of the ruling from this court, and, through counsel, made unsuccessful written attempts to obtain a waiver of the requirement that he retake the California bar examination.

By a letter dated January 8, 1985, only two years after the ruling of the Committee of Bar Examiners, petitioner made a written request for an application form to take the February 1985 bar examination. The letter followed a telephone conversation between petitioner and Paula Daniels, employed by the State Bar as an assistant section chief of receipts, the content of which is in dispute. At his request, petitioner was provided with the "attorney-repeater" application packet, and applied for and took the February 1985 bar examination. 2 He failed that examination, and subsequently applied for and took the July 1985 examination. Neither his letter nor his application forms mentioned the hearings into his character or that he had previously been denied certification to practice law. The application forms did mention that he had previously applied to practice law in 1979, and furnished an update of three cases to which petitioner was a party which had not been resolved at the time of his previous application.

Shortly after petitioner took the July 1985 bar examination, the State Bar requested from him further information regarding the three cases listed on his application, which he provided. In the course of providing this information, he had several telephone conversations with Admissions Analyst Bernardo Rodriguez. The State Bar also requested a copy of his 1979 application to take the bar examination. Petitioner provided a copy of this application; however, the answers to two of the questions on the 1979 form (the questions dealing with accusations of fraud and civil litigation in which he [47 Cal.3d 942] had been involved) read, "see attached sheet [information is being compiled and will be mailed in shortly]." (Brackets in original.) The copy of the 1979 application provided by petitioner contained no "attached sheets," and the cover letter he attached made no mention of the inquiry into his character.

Petitioner passed the July 1985 bar examination. The State Bar failed to recognize that there had been previous hearings

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into his moral character, and routinely recommended that he be certified for admission. Following our order admitting him to [766 P.2d 563] practice on December 10, 1985, the State Bar discovered its oversight, and the instant proceedings commenced.

Petitioner contends the recommendation of the review department is unsupported by the evidence, that prejudicial evidence was improperly admitted against him at the hearing, and that the State Bar denied him discovery of relevant and exculpatory evidence. As will be seen, we find each of these claims unmeritorious.

DISCUSSION

I. SUFFICIENCY OF EVIDENCE

We first address petitioner's claim that the evidence does not support the findings of the review department. The State Bar's findings are not binding on this court, and we must independently review the evidence, resolving all reasonable doubts in favor of the attorney. (Segal v. State Bar (1988) 44 Cal.3d 1077, 1081, 245 Cal.Rptr. 404, 751 P.2d 463; Galardi v. State Bar (1987) 43 Cal.3d 683, 689, 238 Cal.Rptr. 774, 739 P.2d 134; Alberton v. State Bar (1984) 37 Cal.3d 1, 11, 206 Cal.Rptr. 373, 686 P.2d 1177.) However, we rely heavily on the State Bar's findings, conclusions, and recommendations, and the burden of proving them unsupported by the evidence lies with petitioner. (Segal v. State Bar, supra, 44 Cal.3d at p. 1081, 245 Cal.Rptr. 404, 751 P.2d 463; Galardi v. State Bar, supra, 43 Cal.3d at p. 689, 238 Cal.Rptr. 774, 739 P.2d 134; Trousil v. State Bar (1985) 38 Cal.3d 337, 341, 211 Cal.Rptr. 525, 695 P.2d 1066.)

The review department's findings of misconduct rest upon two grounds. First, the review department found that petitioner acted improperly in applying for readmission prior to the expiration of the three-year period established by the Committee of Bar Examiners in its January 19, 1983, meeting. Second, it found petitioner improperly failed to notify the State Bar of the prior inquiry into his character despite being called upon to do so on his application form. Petitioner challenges each of these conclusions.

A. Premature Application

Petitioner concedes the three-year "application" period set by the Committee of Bar Examiners had not yet expired at the time he reapplied to [47 Cal.3d 943] take the bar examination in 1985. However, he argues that applying to take the bar examination and applying for admission to the bar are not one and the same thing, and the committee's order merely barred him from the latter. He claims he was entitled to retake the bar examination so that he could reapply for admission as soon as possible after the expiration of the three-year period. The claim is insupportable.

Rule X, section 104(a) of the State Bar Rules Regulating Admission to Practice Law in California states that "[a]n applicant who has been denied certification for admission to practice law ... because the applicant has not proven that he or she is possessed of good moral character may file another application for admission and pay the required fee after the expiration of two (2) years from the date of such denial or such shorter or longer period as may have been set by the committee...." Here the period set by the committee was three years. Petitioner's apparent contention is that the words "application for admission" contained in section 104 has nothing to do with the application to take the bar examination, which he regards as a separate prerequisite to the application for...

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