Jacobs v. State Bar, S.F. 23638

• Decision Date: 18 November 1977
• Docket Number: S.F. 23638
• Citation: 570 P.2d 1230,141 Cal.Rptr. 812,20 Cal.3d 191
• Court: California Supreme Court
• Parties: , 570 P.2d 1230 Allen JACOBS, Plaintiff and Appellant, v. The STATE BAR of California, Defendant and Respondent.

Page 812

141 Cal.Rptr. 812

20 Cal.3d 191, 570 P.2d 1230

Allen JACOBS, Plaintiff and Appellant, v. The STATE BAR of California, Defendant and Respondent.

S.F. 23638.

Supreme Court of California, In Bank.

Nov. 18, 1977.

As Modified Dec. 15, 1977.

Olsen & Sorrentino, Gary K. Olsen and Christopher M. Gilman, Los Angeles, for plaintiff and appellant.

Herbert M. Rosenthal, Stuart A. Forsyth and Ronald W. Stovitz, San Francisco, for defendant and respondent.

BY THE COURT.

We consider whether superior courts have jurisdiction to review proceedings which a local committee of the State Bar has undertaken in connection with the preliminary investigation of attorney misconduct. Specifically, we must decide whether the superior courts, on application by the attorney under investigation, may inquire into the validity of a subpoena duces tecum issued by a local committee despite the fact that the committee has not yet sought judicially to enforce the subpoena. As will appear, we conclude that by reason of their limited statutory jurisdiction over such preliminary investigations, superior courts have no authority to review the validity of such subpoenas until the State Bar or its local committee seeks enforcement thereof.

Plaintiff, Allen Jacobs, is an attorney licensed to practice law in California. Pursuant to statutory authority (Bus. & Prof. Code, §§ 6040-6053, 6075-6087; all statutory references are to that code unless otherwise cited) and in its capacity as the administrative arm of the California Supreme Court (Emslie v. State Bar (1974) 11 Cal.3d 210, 224, 113 Cal.Rptr. 175, 520 P.2d 991), the State Bar is conducting a preliminary investigation to ascertain whether probable cause exists for the issuance of formal disciplinary charges against Jacobs. (See Rules Proc. of State Bar, former rules 21-24; present rules 12.10-12.40; further reference herein to "rules" will be to the Rules of Proc. of the State Bar.)

In the course of this investigation, a local committee of the State Bar issued a subpoena duces tecum addressed to Michael Nolden. Attached to the subpoena was a declaration, executed under penalty of perjury by State Bar Staff Attorney John R. Jones, asserting in part that "there is presently pending before this committee a matter involving alleged professional misconduct on the part of attorneys in their relations and dealings with Dr. John Winston, Jr.," and that "I am informed and believe and thereupon allege that Michael Nolden has in his possession or control files, documents and papers relating to said attorneys which are relevant and material to the hearing in this matter." The subpoena required Nolden to appear before the local committee at a time and place therein designated and to bring with him "(a)ny and all files, documents and papers in your possession or under your control belonging to Dr. John Winston, Jr., which contain billings to one or more of the following attorneys: . . ." The list contained the names of 30 attorneys, including plaintiff Jacobs.

Although Nolden failed to comply with the subpoena, the local committee made no attempt to enforce compliance by proceeding in superior court (see § 6051). Despite the committee's inaction, Jacobs sought an injunction in superior court to restrain both the investigation and the enforcement of the subpoena on the grounds that these proceedings constituted an invasion of his privacy and an abuse of process. The trial court, after determining that it had jurisdiction over the controversy, nevertheless concluded that Jacobs was not entitled to relief and denied a preliminary injunction. Jacobs appeals. (Code Civ.Proc., § 904.1.)

The State Bar and its local committees have the statutory power to "(c)ompel, by subpoena, the attendance of witnesses and the production of books, papers and documents pertaining to the (disciplinary) proceedings." (§ 6049, subd. (c).) A person under subpoena who fails to appear or to produce documents is deemed to be in contempt. (§ 6050.) To enforce the subpoena against such person, the local committee "shall report the fact" of the contumacious behavior to the appropriate superior court which may issue either an "attachment" of the person, directed to the county sheriff, or an order to show cause. (§ 6051.) In either case, the subpoenaed party has an opportunity to purge himself of contempt or otherwise to defend the failure to obey the subpoena. (Id.) According to the State Bar, in addition to the foregoing procedures, the subpoenaed party or an interested third person may file a motion to quash with the local committee as an alternative to disobeying the subpoena. Neither Jacobs nor Nolden filed such a motion.

In the present case, the local committee, for undisclosed reasons, neither initiated contempt proceedings under section 6051 nor reported to the superior court that Nolden had failed to comply with the subpoena. Nevertheless, Jacobs filed his own action in superior court seeking (1) to restrain the investigation and (2) to annul the subpoena. The State Bar has contended throughout these proceedings that the superior court lacks jurisdiction solely on Jacobs' application to review either the investigation or the subpoena. Under the State Bar's theory, the superior court's jurisdiction to conduct such a review is limited by statute to those situations in which the local committee seeks to enforce its subpoena by reporting the contumacious act to the superior court. We agree.

This court has sole original jurisdiction to disbar or suspend an attorney. (§ 6100.) In 1951, the Legislature excluded other courts from exercising such jurisdiction by striking language from section 6100 which conferred jurisdiction upon the Courts of Appeal and the superior courts. (See In re Weymann (1928) 92 Cal.App. 646, 268 P. 971.) To assist us in carrying out our responsibilities in disciplinary proceedings, the Legislature established a method whereby the State Bar may exercise "a complete alternative and cumulative" means of hearing and determining accusations against attorneys. (§ 6075; see Johnson v. State Bar (1935) 4 Cal.2d 744, 52 P.2d 928.) Although we retain inherent power to control disciplinary matters, the State Bar, as the court's administrative arm, has statutory authority to conduct such proceedings. (Emslie v. State Bar, supra, 11 Cal.3d 210, 224-225, 113 Cal.Rptr. 175, 520 P.2d 991.)

The foregoing procedure is designed to provide an efficient method of protecting the public, the courts, and the legal profession from those attorneys who do not "measure up to their responsibilities." (Dudney v. State Bar (1937) 8 Cal.2d 555, 563, 66 P.2d 1199.) To allow attorneys to initiate superior court proceedings to circumvent or "shortcut" this function, especially at the investigatory stage, would tend to jeopardize the integrity of the process. The State Bar accordingly urges us to hold that the superior court's jurisdiction is limited to cases in which enforcement of subpoenas is sought.

The present controversy arose because Jacobs attempted to enjoin a preliminary investigation into his professional activities. Preliminary investigations are informal matters conducted in confidence for the purpose of determining whether probable cause exists to issue an order to show cause. (Former rule 21(a); present rule 12.10.) Such an order marks the commencement of formal disciplinary action. (Former rule 25; present rule 14.20.) If an attorney under investigation was permitted to initiate superior court intervention in order to obtain a ruling on the question of probable cause the...