No Summary Judgment For Attorney Charged With Suspension Order Non-Compliance

The California State Bar Court Review Department declined to affirm the dismissal of ethics charges and remanded the case for further proceedings.

The issue involved the attorney’s alleged failure to comply with the terms of an earlier suspension

In a prior disciplinary proceeding, on April 27, 2010, the California Supreme Court imposed discipline and ordered that Eldridge be suspended for two years and additionally that she comply with rule 9.20, subdivisions (a) and (c).2 (In re Deborah Ann Eldridge on Discipline (S180385), State Bar Court Case Nos. 06-O-13222 (08-O-12330, 08-O-13969, 08-O-13970).) On May 26, 2010, Eldridge substituted out of the case in which she represented Bonnie Siminski. The Supreme Court’s April 27, 2010 order (SCO) became effective on May 27, 2010. The following day, Eldridge filed the required rule 9.20 declaration, [and made statements] under penalty of perjury…

The allegations of non-compliance and false statement in the notice should not have been resolved by summary judgment 

the hearing judge granted Eldridge’s motion, over OCTC’s objection, and dismissed the matter with prejudice. The judge found that Siminski, her former husband (the adverse party in the litigation), and his attorney were all “aware of the impending suspension and substitution of counsel well in advance of the filing or effective date of [the SCO].” As such, the hearing judge concluded that “[t]he prophylactic effect of rule 9.20 was served.”

Not so fast

the hearing judge’s finding that the “prophylactic effect of rule 9.20 was served” is not a defense to a rule 9.20 violation. To the contrary, the Supreme Court has found that strict compliance with an attorney’s obligations under rule 9.20 is required. (See Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187 [“[n]othing on the face of [rule 9.20] or in our prior practice distinguishes between ‘substantial’ and ‘insubstantial’ violations” of the rule].) Accordingly, the NDC properly alleges rule 9.20 and moral turpitude violations, both of which must be considered on the merits at trial.

(Mike Frisch)