Smith v. State Bar

• Decision Date: 02 May 1985
• Docket Number: S.F. 24801
• Citation: 213 Cal.Rptr. 236,698 P.2d 139,38 Cal.3d 525
• Court: California Supreme Court
• Parties: , 698 P.2d 139 Kenneth W. SMITH, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent.

Page 236

213 Cal.Rptr. 236

38 Cal.3d 525, 698 P.2d 139

Kenneth W. SMITH, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent.

S.F. 24801.

Supreme Court of California In Bank.

May 2, 1985.

Daniel Drapiewski, San Francisco, for petitioner.

Herbert M. Rosenthal, San Francisco, Truitt A. Richey, Jr., Fresno, and Marlene Adams, San Francisco, for respondent.

BY THE COURT:

The review department of the State Bar Court has unanimously recommended that petitioner Kenneth W. Smith be suspended from the practice of law for a period of 180 days and that execution of that order be stayed upon certain conditions including 30 days actual suspension and a one year probation period with restitution and passage of the Professional Responsibility Examination. This court adopts the review department's recommendation.

I.

Petitioner was admitted to the practice of law on June 27, 1975. He has no prior disciplinary record.

On May 17, 1983, petitioner was charged with violating Business and Professions Code sections 6067 ¹ and 6103, ² and rules 6-101(2) ³ and 2-111(A)(2) ⁴ of the Rules of Professional Conduct, arising out of his representation of Mr. Terry S. in a dissolution proceeding. Before describing the alleged misconduct, it is necessary to address two preliminary issues raised by petitioner.

First, petitioner seeks to be relieved from the effect of a stipulation. Prior to the disciplinary hearing, petitioner and the State Bar examiner met for a settlement conference. They discussed and tentatively agreed on a stipulation as to facts, legal conclusions and discipline. A draft of the stipulation was prepared by the examiner and mailed to petitioner approximately 20 days before the hearing. However, petitioner did not sign and return it.

The hearing panel convened on October 28, 1983. Over the objections of the State Bar examiner, petitioner asked if he could orally agree to the proposed stipulation. His request was initially denied, and the examiner proceeded to present an opening argument and the testimony of Terry S. Subsequently, the examiner and the hearing panel allowed the stipulation, which was read into the record. It included admissions of facts and culpability with regard to both the Terry S. matter and a separate case, the Willard H. matter, which was in the preinvestigation stage at the State Bar. Petitioner then made a statement of mitigating circumstances and the examiner made a statement regarding aggravating circumstances.

The proposed recommended discipline included in the stipulation was read into the record. The stipulation called for petitioner to be suspended from the practice of law for 30 days with execution stayed upon conditions which included no actual suspension, one year of probation and restitution to Terry S. and Willard H.

After conferring, the hearing panel announced that it would adopt the stipulation as to findings of fact and conclusions of law, but recommend increasing the discipline to include a 180-day suspension with 30 days of actual suspension.

Sometime in January of 1984, after the hearing but before the hearing panel filed its written decision, petitioner was informed that another complaint against him had been filed with the State Bar in September of 1983 and was under investigation. This complaint will be referred to as the Arlene B. matter.

The hearing panel filed its decision on January 30, 1984. It was served on petitioner on February 10th. Neither petitioner nor the examiner filed a request for review with the review department. The recommendations of the hearing panel were forwarded to the review department for ex parte review pursuant to rule 450(b) of the Rules of Procedure of the State Bar [hereafter Rules of Procedure]. On May 10, 1984, the review department adopted the hearing panel's decision.

After the review department reached its decision, but before the decision was filed or served on petitioner, petitioner's counsel allegedly submitted a letter to the review department requesting a stay of the proceedings pending consolidation with the Arlene B. matter. The request was evidently denied. ⁵ The review department filed its decision on July 6, 1984, and it was served on petitioner on August 1st.

Petitioner makes several arguments in support of his contention that he should not be bound by the stipulation. First, he argues that "fundamental concepts of fairness and due process" require that the stipulation be set aside since it is "based on a material, excusable mistake of fact." The asserted mistake of fact is that at the time petitioner entered the stipulation, he was unaware of the Arlene B. matter. His purpose in entering the stipulation was to dispose of all matters pending before the State Bar regarding his conduct. He claims that the stipulation is of no worth to him because it leaves the Arlene B. matter unresolved.

Petitioner cites People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596, 523 P.2d 636, in which this court affirmed a trial court's decision to allow a criminal defendant to withdraw a guilty plea because the defendant had not realized that the guilty plea would subject him to deportation. Petitioner's situation is a far cry from that of the defendant in Giron. He is not a criminal defendant. Nor is the potential collateral consequence of his stipulation comparable to deportation. At most, it will affect the record of prior discipline which will be considered if he is found culpable for misconduct in the Arlene B. matter or some later disciplinary proceeding.

While State Bar disciplinary proceedings have sometimes been denominated "quasi-criminal" in nature (Giddens v. State Bar (1981) 28 Cal.3d 730, 734, 170 Cal.Rptr. 812, 621 P.2d 851, citing In re Ruffalo (1968) 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117), the rules of criminal procedure do not apply. (Giddens v. State Bar, supra, 28 Cal.3d at p. 734, 170 Cal.Rptr. 812, 621 P.2d 851.) Instead, this court has utilized its "inherent supervisory powers" to apply procedural rules which will guarantee a "fair hearing." (Ibid.) Petitioner has not demonstrated that he was denied a fair hearing simply because he voluntarily entered into a stipulation without knowledge of another complaint which had been filed against him. ⁶

In addition, petitioner failed to make a timely request for withdrawal or modification of the stipulation. Petitioner was informed of the Arlene B. matter in January of 1984. The hearing panel issued its decision in this matter on January 30, and it was served on petitioner on February 10. Rule 408(a) of the Rules of Procedure allows a request for withdrawal or modification of a stipulation to be made within 15 days of service of the order of the hearing panel approving the stipulation. Petitioner filed no such request.

Nor did petitioner avail himself of other possible avenues of relief provided for in the Rules of Procedure. Rule 562 permits a motion for de novo hearing within 10 days after the hearing panel decision is served. Petitioner made no such motion. Rule 450(a) allows the filing of a request for review by the review department within 15 days after service of the hearing panel's decision. Petitioner filed no request for review.

Even in his letter to the review department, sent three and one-half months after service of the hearing panel decision and approximately five months after petitioner learned of the Arlene B. investigation, petitioner did not request that the stipulation be set aside. Instead, he requested a stay of the proceedings.

Petitioner first requested to be relieved of the stipulation in his petition for writ of review in this court. He has presented no persuasive argument why this untimely request should be granted.

Petitioner next argues that the stipulation should be set aside for failure to comply with rule 406 of the Rules of Procedure. This argument is also without merit. Rule 406 provides, in pertinent part, that a proposed stipulation as to facts and discipline "shall set forth each of the following: ... [p] (vi) the disposition to be made of other pending investigations or formal proceedings...." At the time the stipulation was entered into, it is clear that neither petitioner nor the State Bar examiner were aware of the Arlene B. matter. A stipulation cannot be expected to include information which is not yet known to either party. ⁷ However, petitioner was aware of the pending investigation at the time the hearing panel rendered its decision. At that time, he could have taken steps to withdraw or modify the stipulation. He failed to do so.

Next, petitioner argues that the stipulation should be set aside because the hearing panel did not accept the stipulated discipline. Petitioner asserts that this was a violation of rule 408(b) of the Rules of Procedure, which provides that "[i]f the ... hearing panel ... rejects a stipulation as to facts and disposition, the parties shall be relieved of all effects of the stipulation and the proceeding or investigation shall resume before another referee or hearing panel...." However, the stipulation itself included the following paragraph: "It is understood by the Parties that this stipulation to proposed discipline is not binding upon this panel, upon the review department, or the Supreme Court of the State of California." The panel did not violate the terms of the stipulation since the stipulation itself provided for modification of the discipline.

In addition, after the stipulation had been read into the record and the statements in mitigation and aggravation had been made, the principal referee announced that the panel was taking a recess "to confer as to the discipline." After the recess, the referee announced that the hearing panel had adopted the stipulation's findings, facts, and conclusions of law, but had increased the recommended discipline. She asked if there were further comments, stipulations or additions. Petitioner did not...